INDIGENOUS HEALTH AND THE TREATY DEBATE: RIGHTS, GOVERNANCE AND RESPONSIBILITY Info Sheet 2: Could a treaty or constitutional change make a difference? Some quotes from those who think it could… While supportive of the idea of a treaty or treaties, none of the authors below suggest they are a panacea for the problems in Indigenous health. They acknowledge that health problems must be tackled on several fronts. While many express their views on a treaty in tentative terms, they draw on research on social determinants of health and an awareness that constitutional structures can impede or assist health care. Central Australian Aboriginal Congress: ‘Treaties have a role to play in [the social determinants of health] through: • providing clear and effective institutional arrangements for the provision of health (and other services) • overcoming the adversarial nature of state and territory government relations with Indigenous populations • establishing Indigenous rights in law • giving individuals a greater sense of their own strength within the system and • a lessening of a sense of helplessness or powerlessness… A treaty can raise the administrative obligations of the Commonwealth Government above parliamentary political will and embed it in a higher authority within the Western system ie the Constitution (Canada) or as an agreement to be interpreted through an independent tribunal (New Zealand/Aotearoa).’ 1 Stephen Kunitz: ‘Would a treaty help? It is important to consider both the symbolic value of a treaty and its legally enforceable provisions. I do not for a moment mean to devalue the symbolic importance of an admission of government wrong-doing that a treaty would very likely imply. But the lasting value of a treaty is that it contains provisions that can be enforced by the courts. However, the American experience suggests that treaties are not always readily enforced. Court battles are expensive, and they are not always settled as Indian tribes would like. But certainly a treaty without provisions assuring, for example, access to health care or protection of land rights would not achieve all that would be needed to contribute to the improved health and well-being of Aboriginal people.’ 2 Reynolds, Smith, Howse and Beesley: ‘[A] focus on legal and constitutional issues legitimately [has] a place in indigenous policy, both because they may be relevant to outcomes and also because they are important issues in their own right… Some jurisdictions have expressed rights in a more significant and binding way by incorporating these kinds of rights into their constitutions. One example is the South African Constitution…Overall the South African experience indicates the importance of positive rights since these are triggers for achieving adequate standards of environmental health and health care. If they are pursued and actively enforced by courts, positive rights will prompt the environmental and social changes that so often are the causes of ill health within populations… How might they be relevant to Indigenous communities in Australia?…We suggest that a constitutional right to health would provide a forum for an applicant, representing an indigenous community to take the matter to court and to seek an order that their constitutional right was not being met. In this model resources would no longer be the exclusive preserve of government policy makers but would become a public issue… We can see in the United States, Canadian, and also New Zealand, constitutional arrangements which recognise the prior rights of indigenous communities and vest some formal levels of constitutionally protected governance in those communities… Do these arrangements contribute to the fact that indigenous health status is substantially better in those communities than it is in Australia where, beyond some recognition of land rights and the potential to claim native title, nothing has happened?... We might speculate whether these opportunities, which seem to exist in the United States and Canada, and which may substantially explain the differences in health status, are more prevalent and more resilient because they are grounded in a constitutional base and are part of a tradition which has taken, and continues to take, the theory, if not always the practice, of Indigenous rights seriously. More investigation of this proposition needs to be undertaken but it is a promising line of inquiry emphasising the potential importance of the “big picture” while seeing some useful links between the law and indigenous health and welfare.’ 3 Kate Ross and John Taylor: ‘While governance structures clearly differ for Maori and Indigenous Australians, it is still not entirely clear how treaty obligations work to improve Indigenous health. As suggested above, clearer and more effective institutional arrangements for the provision of health services are one way in which treaties may operate. In an earlier section, the adversarial nature of federal-state relations in Australia was noted, and it was suggested that this did not serve the needs of Indigenous Australians well. Moreover, given that the federal government was unable to legislate for Indigenous people until 1967, Australia suffers a significant time lag behind the policies and actions evident in New Zealand. Even now, health services are delivered at three levels: federal, state and community. Furthermore, the 1967 Referendum itself is a very blunt instrument for providing the kinds of rights now enjoyed by Maori under the Treaty of Waitangi… The other side of the institutional arrangements that flow from treaties is the interpretation by individual Indigenous people of their own status. In the presence of legal rights and obligations, an effective bargaining base and explicit recognition by the non-Indigenous majority, it is arguable that psychosocial stress could be mitigated.’ 4 Ian Ring and Ngiare Brown: ‘There isn’t any particular mystery about what is needed to bring about sustainable improvements in Aboriginal and Torres Strait Islander health… So what would it take? Firstly, an adequately funded Primary Health Care Access Program (PHCAP) to ensure satisfactory and effective community controlled Primary Health Care services throughout Australia. Secondly, a funded National Training Plan. Thirdly, a National Infrastructure Plan to rectify the longstanding deficiencies in water supply, sanitation, education and other basic services. Fourthly, dedicated funds for Aboriginal and Torres Strait Islander health research – preferably 5% of the national health research funds and through a mechanism controlled by Aboriginal and Torres Strait Islander people. Finally, it is our view that these, and other social and political issues of fundamental importance, would best be encompassed within a treaty or agreement, but the four fundamental health initiatives cannot be further delayed, and should progress as immediate national priorities.’ 5 Ian Ring and David Firman: ‘The Treaty of Waitangi has been central to the relationship between Maori and other New Zealanders, and in the United States treaties established some status for Native Americans in their relationships with the “invading” Europeans, although these treaties were often abused. It is therefore difficult to entirely discount the suggestion that the absence of a treaty is a factor in the relative lack of progress in improving Australian indigenous health. Treaties, no matter how loosely worded, have appeared to play a significant and useful role in the development of health services, and in social and economic issues, for the indigenous people of New Zealand, the United States and Canada. Syme has hypothesised that the sense of control that people have over their lives and the sense of hope that this creates are important determinants of health status. He links both of these factors to disadvantage. It is arguable that colonial paternalism, an official policy of assimilation, and a lack of formal recognition through treaties have together acted to create and reinforce a sense of powerlessness in Australian indigenous people which is relatively less in other indigenous groups. It may well be that these intangible factors are adversely affecting indigenous health in Australia.’ 6 1 Central Australian Aboriginal Congress, Position Paper: Treaty & Health, July 2002, <www.caacongress.com.au/papers/Treaty%20&%20Health%207-02%20pos.doc> citing Kate Ross and John Taylor, ‘Improving Life Expectancy and Health: A Comparison of Australia’s Aboriginal and Torres Strait Islander People and New Zealand Maori’ (2002) Journal of Population Health, September 2002. 2 Stephen Kunitz, ‘International comparisons relating to Indigenous Health and Primary Health Care’ (2002) delivered at Working Together, Sharing Experiences conference, Centre for Remote Health <crh.flinders.edu.au/wonca/papers/Kunitz.pdf> 3 Chris Reynolds, Rosie Smith, Genevieve Howse and Anna Beesley, ‘Law as a Determinant of Indigenous Health’, presented at the CRCAH Workshop on Social Determinants and Processes in Aboriginal Health, 6-7 July 2004. 4 Kate Ross and John Taylor, ‘Improving life expectancy and health status: a comparison of indigenous Australians and New Zealand Maori’ (2002) Journal of Population Health, September 2002. 5 Ian Ring and Ngiare Brown, Achieving Sustainable Improvements in Aboriginal and Torres Strait Islander Health (2003) In Search of Sustainability Online Conference <www.isosconference.org.au/entry.html>. 6 Ian Ring and David Firman, ‘Reducing indigenous mortality in Australia: lessons from other countries’ (1998) Medical Journal of Australia <www.mja.com.au/public/issues/nov16/ring/ring.html>.
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