Part 3 Consequences of Removal Chapter 10 Children’s Experiences

Assistanceshould be giventothose wishing to return to their and theirfamilies’ traditional country and to assist them withnegotiationswith the Native Title holdersof that country (Broomeand Derby Working Groupssubmission 518recommendation 3.2.2).

Traditionalowners should be assisted to decide whether, and to what extent, they can include people who were removed as children.In particular, they need reliable information about the history of forcible removal, its effects and the involvement of particular individuals.

Assistance to return to country Recommendation11:That the Council of Australian Governments ensure that appropriate Indigenous organisations are adequately funded to employ family reunion workers to travel with clients to their country, to provide Indigenous community education on the history and effects of forcible removal and to develop communitygenealogiesto establish membership of people affected by forcible removal.

Many people affected by the removal policies may be unable to return to their traditional country. Inmany cases the policies of removal and segregation have successfully destroyed their capacity to maintain their connection to their land.In some cases, traditional owners will be unwilling to reintegrate former community members. People who by reason of their removal are now unable to enjoy native title rights should be able to establish that loss in any claim for monetary compensation. The importance of compensating such loss was emphasised in numerous submissions to the Inquiry.

Grantsof land and/or housing shouldbe madetofamilies of those whohave lost access to traditional land and such landcouldbe allocated in areaswhere these people grew up and withwhich they now identify (Broome and DerbyWorkingGroups submission518 recommendation 3.2.1).

I think compensation for me would be something like a good land acquisition where I couldcallmy own and start the cycle of buildinggood strong foundations for Aboriginal families. Because the wholething started from people comingto this country and stealing the land,and then everythingfell apart fromthen on.So I think forpeople who have been dispossessed of land, butmoreimportantly dispossessed of our identities and dispossessed of where we came from … I think togiveus compensation in theform of some land acquisition would go very well into helping start stable family relationships and stable generations from here onin.

Confidential evidence696, New South Wales.

What I’d like to have – I’d like to have me own house, meown block of land. Like, I figure theyowe me that much.I’vegivenmost of my life, surely they canpayfor that. Maybe if I was with me family I’d have a decent bank account instead of one with a dollarsixty-seven creditor something like that, or overdraft. I want me own blockof land, somethingthat I don’t have to payforagain. Something I can call mineand no-one can take itaway, because I haven’thadthat yet.

Confidential evidence146, Victoria.

[T]hepeoplewho havebecome landless … partly due to this kind ofpolicy couldbe compensatedby assistance to have a home and landof their own orfor their family (Jack Goodluck,former Minster in theUniting Church and Superintendent of Croker Island, evidence 119).

Other recommendations to the Inquiry have drawn attention to the need for broader measures of ‘cultural restitution’.

Cultural and language education centres, meeting centres and land acquisition are the kindof reparations and facilities that community opinion indicates may be appropriate as recompense for past sufferingand dislocation (ALRM submission 484 at 22;see also Cape York Land Council submission 576).

Full supportbe provided toKimberley Aboriginalorganisations promoting Aboriginal culture, language, identity and history (Broomeand Derby Working Groupssubmission518 recommendation 3.3.3).

The significance of Indigenous languages to the maintenance of family relations and the preservation and transmissionof cultures was not lost on missionaries and protectors.The speaking of languages was frequently prohibited.

People were alsopunished for speaking language.In many places languagebecame something that had to be hidden; we were taught to be ashamed ifwe spoke anythingother thanEnglish (Kimberley Language Resource Centresubmission 759page 2).

[The oldpeople] didn’t like you listening inand wouldn’t explain things to you, what itwas about … Thenagain they were frightened ofwhite-fellas, Superintendents[-] theywere very veryfrightened … Ifold people tried to teach the youngerpeople, they were sent to Palm Island, at thepleasureof the Superintendentin those days. It was a crimeto teach us languages,that’s why we weregoing backwards … The old people were frightened of getting sent away … That’s why a lot of ourpeoplewere frightened to teach us our language.It was fear(quoted byAird 1996 on page 14).

The loss of language is intimately connected with the loss of identity for those forcibly removed and their descendants.

The storyof language loss is the storyof separation.With theremoval of childrenfrom their families and displacement to missions, authoritieseffectively isolated these children from the nurturing and supportive structuresof all aspects of their culture.

It is wellknown that the mission childrenwerenotonly discouraged from speaking their native languages,but in many cases physically punishedfor doing so.

‘What must beremembered is that language is not simply a toolfor everyday communication,but throughrecording of stories, songs, legends,poetry and lore,holds the key to a people’s history andopens thedoorto cultural andspiritualunderstanding (Aboriginal and TorresStraitIslander Corporation of Languages submission 854page 2).

The Kimberley Language Resource Centre submitted,

Language and identity are closely linked, and for many ofusour language is a symbol of identity central to our self-esteem, culturalrespect and social identification.Our languages provide more than just a way to talk to each other. Theyprovide a wayforus to interpret the reality we see around us. The wordsweuseto name things, to describefeelings, understandings and eachother, carry meaningsparticular to us. Ifwe losethesewords,we lose part of ourselves …

… whenour childrenwere stolenfrom our families one ofthe things thathappened wasthat the language learning cycles were broken.Transmissionfrom generationto generation is a crucial link in language maintenance. Taking the children away broke thislink(submission 759 page 1).

The Royal Commission into Aboriginal Deaths in Custody commended the establishment of language and culture centres and recommended that governments support these Indigenous initiatives (Recommendation 56). A network of regional language centres is now established with funding administered by ATSIC under the Aboriginal and Torres Strait Islander Language Identification Program (ATSILIP). The

Program was reviewed for ATSIC in 1995 by the National Language and Literacy Institute of Australia. The Review ‘strongly recommended’ a continuation of the program to the end of 1999-2000 ‘with an expectation that it may need to be extended further, given the range of languages involved and the work that needs to be done’ (Recommendation A.1). The Program was also strongly endorsed in 1996 by the National Board of Employment, Education and Training, with a similar recommendation for extension. Core tasks ofthe language centres are language recording and maintenance and teaching languages.

The existing language centre model is clearly appropriate for the task of assisting people affected by forcible removal to recover their languages. Local and regional negotiations will be required to determine whether the language centre is the appropriatebody to take on other tasks envisaged by the Inquiry, notably that of recording and storing personal testimonies of forcible removal and its effects and that of archiving local history records. The generic term ‘language, culture and history centres’ isused to indicate the range of tasks that need to be performed. Existing language centres may be expanded. Alternatively new institutions may be established.

Language, culture and history centres Recommendation12a:ThattheCommonwealthexpandthefundingof Indigenous language, culture and history centres to ensure national coverage at regional level. Recommendation12b:That wherethe Indigenous community so determines, the regional language, culture and history centre be funded to record and maintain local Indigenous languages and to teachthoselanguages, especially to people whose forcible removal deprived them of opportunities to learn and maintain their language and to their descendants.

The Inquiry has found that a key objective of forcible removals was to sever the link between the child and his or her family, community and culture. For many people the practices used to advance this objective have resulted in an inability to establish their Aboriginality by reference to the frequently applied three-pronged definition. For many purposes proof of Aboriginality now requires (1) proof of descent from the Indigenouspeoples of Australia, (2) self-identification as an Indigenous person and (3) acceptance by the Indigenous community as an Indigenous person.

Somepeoplewhowereforciblyremoved and theirdescendantsarenot acknowledged as members by their own communities of origin, while others are unable to locate their communities. The application of a definition requiring acceptance as Indigenous by the person’s communitymust not be permitted to discriminate against the most direct victims of the forcible removal policies.

Indigenous identification Recommendation13:That Indigenous organisations, such as Link-Ups and Aboriginal and Islander Child Care Agencies, which assist those forcibly removed by undertaking family history research be recognised as Indigenous communities for the purposes of certifying descent from the Indigenous peoples of Australia and acceptance as Indigenous by the Indigenous community.

This recommendation extends only to a person’s general acceptance as an Indigenousperson.It does not propose that the organisations mentioned should be authorised to certify membership of a particular Indigenous community for any particular purpose such as Land Council membership. This is entirely a matter for the particularcommunity itself, which may in its discretion rely on the advice of a link-up worker or other organisation.

Monetary compensation

People go on about compensation and allthis.And they don’t seem to get thereal reason as to why people wantsomesort of compensationor recognition.Ineedto be given a start.I justneed somethingto makethe road that I’mona little bit easier.

Confidential evidence441, New South Wales.

On the subject of monetary compensation, van Boven proposed the following principle.

Compensation shallbeprovidedfor any economically assessabledamage resultingfrom violations of humanrightsand humanitarianlaw, suchas:

(a)Physical or mental harm, including pain,suffering and emotional distress;

(b)Lost opportunities,including education;

(c)Material damages and lossof earnings, including lossof earningpotential;

(d)Harm to reputationor dignity;

(e)Costs requiredfor legal or expert assistance.

There was considerable support among submissions to the Inquiry for the provision of monetary compensation to the victims of forcible removal.

The Commissioners should encourage governments to negotiate financial settlements with groups and individuals on thebasis that either financial compensation orreparations tobe made available to them as atonement for pastand continuinggrievances(Aboriginal Legal Rights Movement (SA) submission 484page 52; see alsoAboriginal Legal ServiceofWA submission 127 recommendation 11,Broomeand Derby Working Groups submission 518 page 1, StolenGenerations National Workshop submission 754 page 50).

All the harms and losses suffered by people affected by forcible removals are recognisedunder the common law or under contemporary statutory regimes as losses for which compensation can be awarded. People who have suffered these harms and losses should not be denied a remedy just because the perpetrators were mainly governments or because the victimisation was on such a vast scale.

It is NSWALC’s view that individualswhohave hadwrongs committed against them are entitled to fulland proper compensation. Compensation to individuals should at thevery least be assessed onthe same basisas any other tortious claim. The obligation ongovernments to pay monetarycompensation is not to be shirked because it may be considered politically

undesirable or because therequirement to pay compensation may be onerous(NSW Aboriginal Land Council submission 643page1).

The reparations scheme should recognise the full range of harms and losses caused by the removal policies. The Inquiry’s recommendations under term of reference (b) in particular address the losses incurred by Indigenous communities.Individual victims should also be entitled to measures of restitution and rehabilitation as proposed under term of reference (b). Monetary compensation should be payable for harms and losses for which it is not possible to make restitution in kind. Any individual affected by the removal policies should be entitled to make a claim for compensation, including parents, siblings and other family members in appropriate cases. The Inquiry was urged to recognise the full range ofdamages suffered by the victims of the removal policies.

Werecommend that compensation to bepaidfor the following … :

pain and sufferingof the victims and theirfamilies

lossofaccess to their familiesand their love and support

lossofaccess to and knowledgeof their traditional lands

lossof theirNative Title rights

lossof theright to grow up knowing their traditional culture and language

lossof theright to haveprivate property

loss ofinheritance rights

loss of freedom

lossof theright to determine theirown lives and those of their children

suffering hardship and abusewhilstdetained in institutions

suffering racism and discrimination whilst detained in these institutions

(Broomeand Derby Working Groupssubmission 518recommendation 3.1.1).

Supreme Courts in both South Australia and the Northern Territory have awarded substantialdamages to Aboriginal accident victims for loss of cultural fulfilment.In Napaluma v Baker in 1982 $10,000 was awarded for loss of cultural fulfilment to an initiated man of 18 whose head injury meant he could take no further part in ceremonies.In Dixon v Davies in the same year $20,000 was awarded to a boy of 10 who would not be able to be initiated and would therefore lose status and be unable to participate in ceremonies.

With respect to compensation for loss of native title rights, the Cape York Land Council submitted that,

… at least twoheadsofdamage suggest themselves: specific damages for the loss of actual legal rights, which in this case wouldbe theright to enjoynative title as part of a group, and

generaldamages for thepainand suffering arising from the lossof these particular legal rights(submission 576).

Where native title rights can be restored, that is where the traditional owners accept the individual as a full participant in enjoyment of the title, no damages should be available.

The heads of damage identified in Recommendation 14 are in line with those proposed by van Boven and adopted in successful human rights litigation in other jurisdictions.

Heads of damage Recommendation14:That monetary compensation be provided to people affected by forcible removal under the following heads. 1.Racialdiscrimination. 2.Arbitrary deprivation of liberty. 3.Pain and suffering. 4.Abuse, including physical, sexual and emotional abuse. 5.Disruption of family life. 6.Loss of cultural rights and fulfilment. 7.Loss of native title rights. 8. Labour exploitation. 9. Economicloss. 10.Loss of opportunities.

Civil claims for compensation Indigenouspeople are now taking civil damages actions arising from forcible removal.One was commenced in New South Wales by Ms Joy Williams, a woman taken from her mother at birth in 1942 and placed in Bomaderry Children’s Home. She was moved at four to a non-Aboriginal children’s home because she was ‘fair-skinned’. Here visits from her mother ceased because the mother was not told of her whereabouts. The child was told she was an orphan. She complains that she was ill-treated in this home and repeatedly ran away. She was brought up to believe she was ‘white’ and to have a low opinion of Aborigines. But in adolescence she was told she had ‘mud in your veins’ causing severe distress. She opened her veins to examine her blood for mud (Williams 1994 page 501). In adulthood she suffers severe psychiatric and other ill-health.

Ms Williams claims the Aborigines Welfare Board was her statutory guardian and breached its fiduciary duty to her by denying her her cultural heritage, by failing to protect her from harm and by failing to prepare her for healthy adult life. The injuries she now experiences are said to flow from her wrongful removal first from her mother and then from Bomaderryto a non-Aboriginal home. Having overcome a potential problem with the statute of limitations, Ms Williams’ case awaits trial on the issues.

Another action has been commenced against the Commonwealth by two groups of Northern Territory plaintiffs, one group of six and another of three. The first group of six includes the mother of a baby girl removed from her in 1946. The other plaintiffs were forcibly removed as children in the 1920s, 1930s and 1940s. Their complaint is that the Aboriginals Ordinance 1918-1953 which the Commonwealth enacted for the Northern Territory and under which they were removed was invalid because it was contrary to implied constitutional rights, notably an implied right to personal liberty. The complainants seek a declaration to that effect and damages for breach of their constitutional rights and for breach of fiduciary duty. The case was argued in May 1996 before the High Court of Australia. Judgment is awaited.

Difficultiesof proof and the expiry of statutory periods of limitation may deny a remedy to many victims of forcible removal.However, the harms they suffered, detailedin Parts 2 and 3 of this report, are recognised heads of damages that can be compensated under Australian law. Relying on the civil courts for remedies, however, is likely to lead to great delay, inequity and inconsistency of outcome. The civil process is daunting and expensive, thus deterring many of those affected.It will also involved great expense for governments to defend these claims.

In our experience the separation issue is a very private andpersonal one for the people concerned. The stress and trauma of a courtcase and the resulting loss of privacy is likely to deter many Aboriginalpeople from bringinga legal action against theGovernment (Tasmanian Aboriginal Centre first submission 325page 11).

Ex-gratia payments In its submission to the Inquiry the Commonwealth Government proposed that ex-gratia payments might be made to those affected by the forcible removal policies provided that certain criteria and principlescouldbe satisfied (submission page 27).

By definition,ex-gratia compensation is at thediscretionof the Government (subject to parliamentary authorisationof appropriations) and it is neither possible nor desirable to develop bindingrules (submission page27).

The Commonwealth submitted that the application of three principles in particular to the facts revealed by the Inquiry would preclude the ex-gratia payment of compensation in this case. • Difficulties in identifying the persons eligible for compensation.

• Difficulties in estimating the amount of loss in monetary terms. • Negative consequences for the wider community.

The Inquiry considers that the Commonwealth has overstated the difficulties in identifying with reasonable certainty people who have suffered loss. The Inquiry has found that in different ways individuals, families and communities have suffered as a result of forced removals. Different forms of reparation and different procedures for determining compensation can be appropriateto reflect particular experiences of, and needs arising from, separation of families. This is consistent with the approach of

the United Nations Special Rapporteur van Boven and the Canadian Royal Commission on Aboriginal Peoples in its report on the High Arctic Relocation.

The Inquiry’s approach is based on a human rights framework.It recognises that in most cases the right to claim reparation in the form of monetary compensation will be limited to individuals and families. Communities should receive reparation for the harm they have suffered in the form of restitution, rehabilitation, satisfaction and guarantees against repetition. The class of persons eligible for compensation therefore can be specified with reasonable certainty.

The Commonwealth Government also submitted that gaps and deficiencies in records would render the identification of persons within the class problematic.In the Inquiry’s view, it would be unjust to exclude from compensation any individual who has been a victim of forcible removal merely because of the unsatisfactory state of his or her records which have been at all times the preserve of government and delegated carers. It would also be unjust torefuse compensation to those whose records have survived and who can establish a claim. Despite gaps and deficiencies, extensive records relating to forcible removals have survived. Where an individual can establish that he or she suffered harm as a result of forcible removal, governments have an obligation to provide compensation.

The second Commonwealth difficulty concerned estimating the monetaryvalue of loss. The Commonwealth submitted that ‘[t]here is no comparable area of awards of compensation and no basis for arguing a quantum of damages from first principles’. Most elements of the harm experienced by the victims of forcible removal are recognisedheads of compensation in Australian civil damages law. The same principles should apply to quantification as would apply in the civil courts. It is difficult to quantify damages for loss of a limb in a motor vehicle accident or for the psychological injury incurred. Yet the difficulty does not prevent civil courts assessing tortious damages in these kinds of cases every day.

Even where Australian law does not presently recognise a right to reparations, as for gross violations of human rights, there are numerous precedents which should guide Australian developments. For example, under the Alien Torts Claims Act United States courts frequently award damages to victims of gross violations of human rights, as well as to their estates and to close family members. The Inter-American Court of Human Rights on numerous occasions has quantified compensatory damagesto be awarded to the families of victims of gross violations of human rights.

In a situation with parallels to that dealt with by this Inquiry, Swiss Romany victims of forciblechild removal have been awarded a lump sum amount by way of compensation. From 1926 until 1972 the organisation ‘Children of the Road’, with Swiss Government approval, aimed to protect the children of travelling people, particularlythe Roma people (sometimes disparagingly called ‘Gypsies’). This ‘protection’ involved the enforced settlement of many children and the separationof 619 from their families. Upon the dissolutionof Children of the Road, its parent organisation officially apologised to the Romany community and ‘has set about compensating the victims, a total amount of SF 11 million having been divided among almost 1,900 victims’ (Switzerland’s periodicreport to the Human Rights Committeeunder the International Covenant on Civil and Political Rights, UN Document