JILT 1997 (2) - AustLII Paper 6
6. Indigenous Peoples' Legal issues via Internet
Contents
6.1 AustLII's indigenous law project
Reconciliation between the indigenous and non-indigenous peoples of Australia is of fundamental importance to the future of the country, as acknowledged by all Australian political parties and successive Australian governments in bipartisan support for the Council for Aboriginal Reconciliation [38] . This project aims to find how best to utilise the resources of the Internet to advance the task of furthering reconciliation.
In the aftermath of the Wik decision and the Bringing them Home Report, the political climate may have changed, but the legal issues affecting indigenous peoples and reconciliation have become more complex. The need for the more effective access to these materials that this project promises to deliver has become more urgent.
In 1995-96, the Council for Aboriginal Reconciliation and AustLII jointly created the first stage of the Reconciliation and Social Justice Library on the Internet, and established a productive working relationship and recognition of common goals. This large-scale prototype project involved over 100 MB of texts, most notably the full text of the 97 volumes of the Reports of the Royal Commission on Aboriginal Deaths in Custody. These reports had gone out of print, and the master disk copies had been lost. The Council reversed these circumstances by having all 97 volumes re-captured using optical character recognition, and then made widely available through CD-ROM and through AustLII's web facilities.
AustLII and the Council then jointly obtained a collaborative research grant from the Australian Research Council [39] for 1997-99, so as to utilise the complementary expertise of the Council and its Secretariat in indigenous history and legal matters, and the expertise of AustLII in research and development in the computerisation of legal materials.
AustLII's Project Manager for the Reconciliation and Social Justice Internet Project is Kirsty Magarey. Tim Moore, formerly the Secretary to the Council for Aboriginal Reconciliation, is providing assistance with various aspects of the project in an honorary capacity.
6.1.1 The project's goals
The project aims to achieve the following main research goals:
- to determine what are the significant historical materials concerning parliamentary, constitutional and legislative matters of relevance to Aboriginal and Torres Strait Islanders since the constitutional conventions of the 1890s;
- to develop further innovative techniques pioneered by AustLII for large-scale hypertext mark-up integrated with text retrieval over the World Wide Web, so as to create a completed 'Reconciliation and Social Justice' collection freely available on the Internet, and in a form which makes these texts easy to use but facilitates sophisticated research uses;
- to develop and test other Internet-based means of communicating information concerning the reconciliation process, so as to integrate the 'Reconciliation and Social Justice' collection into a comprehensive resource which meets the needs of widely differing audiences, indigenous and non-indigenous; and
- through a pilot project of Internet connection and training, and usage monitoring, to test the value of these resources to one important audience, remote indigenous communities.
The project aims to make the Internet a key resource in the process of reconciliation. In doing so, it will create a permanent, free and universally accessible resource for reconciliation which will continue the Council's work after the formal end of the Council's functions at the end of the year 2000.
The project will also enable AustLII to achieve technical advances which will flow on into all other aspects of AustLII's work (and that of others communicating large scale texts via the Internet), and in particularly will lay the foundations for massive integration of primary and secondary legal materials.
The legal/historical research is also challenging, as these historical sources have not been documented fully [40] .
6.1.2 Key issues for reconciliation
The Council has identified eight key issues as being central to the reconciliation process:-
- a greater understanding of the importance of the land and sea in Aboriginal and Torres Strait Islander societies;
- better relationships between Aboriginal and Torres Strait Islander peoples and the wider community;
- recognition that Aboriginal and Torres Strait Islander cultures and heritage are a valued part of the Australian heritage;
- a sense for all Australians of a shared ownership of their history;
- a greater awareness of the causes of disadvantage that prevent Aboriginal and Torres Strait Islander peoples from achieving fair and proper standards in health, housing, employment and education;
- a greater community response to addressing the underlying causes of the unacceptably high levels of custody for Aboriginal and Torres Strait Islander peoples;
- greater opportunity for Aboriginal and Torres Strait Islander peoples to control their destinies;
- agreement on whether the process of reconciliation would be advanced by a document or documents of reconciliation
This identification of reconciliation priorities assists us to set project priorities and the classification of information collected for the project.
6.2 The Reconciliation and Social Justice Library
The Reconciliation and Social Justice Library is the central resource of the project. The collection contains over 100 megabytes of text, making it the largest secondary law resource on AustLII, and one of the largest in Australia.
The most important initial content of the Library was the full text of all 97 Reports of the Royal Commission on Aboriginal Deaths in Custody, including the 85 Individual Deaths reports. Individual death reports on the web site are preceded by a cultural warning which is relevant to non-indigenous users of these reports [41] . The collection also includes extensive research materials from the Council for Aboriginal Reconciliation , the Aboriginal and Torres Strait Islander Commission (ATSIC) , the Australian Institute of Health (AIH) , the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) , the Australian Law Reform Commission (ALRC) , the Department of Prime Minister and Cabinet, the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, the Aboriginal and Torres Strait Islander Social Justice Commissioner and a growing range of non-governmental organisation's quality material. AustLII is also the World Wide Web host for the Council for Aboriginal Reconciliation's own home page
Recent additions to the Library include the full text of the Review of the Aboriginal and Torres Strait Islander Protection Act 1984 by Justice Elizabeth Evatt, occasional papers of the Australian Institute of Criminology on Aboriginal deaths in custody, a guide to the findings of the Royal Commission into Aboriginal Deaths in Custody, numerous papers on the Wik decision and its implications, and the Community Guide to the Report of the National Inquiry into the separation of Aboriginal and Torres Strait Islander children from their families. Items that are being added at present include the full text of the aforementioned Report (the 'Stolen Generations' Report).
To date, the collection priorities for the Library have been to establish means of obtaining permissions and data for materials on current indigenous law issues in Australia, particularly those relating to the Aboriginal Deaths in Custody, Native Title, and 'Stolen Generations' issues. We decided it was a priority to first capture the key documents which will have long-term importance in the ongoing debates in Australia from now to the year 2000 when this project and the Council's current mandate both complete.
6.2.1 'History of Indigenous Legal/Constitutional Issues' Component
The legal/historical research component of the project involves the identification, through archival research and otherwise (commencing with the constitutional conventions of the 1890s) of the key constitutional, parliamentary or legislative material of relevance to Aboriginal and Torres Strait Islander people. This will include parliamentary committee reports, legislation over the years and its attendant debate at varying stages in the development of indigenous issues (such as the 1967 Referendum legislation and debate and the official "yes" and "no" cases for the Referendum).
We propose to use two bibliographic resources commissioned by the Council [42] as starting points to identify these key historical resources, and then obtain advice on collection priorities from experts in the field including Council members and staff. It will be necessary to determine and implement the best means of data capture of those materials in computerised form, having first obtained the necessary copyright and other permissions. Some priority will be given to material already in computerised form.
6.2.2 Collection difficulties - A centralised or partly distributed facility?
We have experienced some difficulties in obtaining permissions for some materials which are already in digital form, including from two Parliamentary Committees dealing with Aboriginal and Torres Strait Islander issues. Their reason given has been that the Commonwealth Parliament intends to place the material on its own web site and our requests to provide access via the Library as well have so far been refused.
The development of AustLII's targeted web spider will, we hope, provide an answer to this problem (see Paper 3 'Indexing Law on the Internet'). Where materials cannot be obtained for inclusion on AustLII in the Library, we will endeavour to use the web spider so that the materials will still be searchable on AustLII, in effect as part of the Library, using the SINO search engine as a consistent interface no matter where the materials are located. Indigenous legal materials not on AustLII will be a priority target of the web spider.
Other refusals or delays in creating access have been due to copyright concerns of authors - or the need to make a profit from the sale of hardcopy. As set out in a previous paper, AustLII's view is that when a publicly funded body produces a public document it should maximise access to the information, including by Internet publishing.
With respect to copyright concerns there has been a paradoxical spin off from the changing political climate mentioned earlier in this paper. As threats to the reconciliation process have developed from various sectors of Australian society (and Pauline Hanson and 'One Nation' are only the most obvious of these) authors have often become more enthusiastic and committed to publishing their materials on the Internet.
6.2.3 Linkages between the Library and AustLII's primary legal materials
AustLII has very extensive case law and legislation affecting indigenous peoples in its primary legal materials databases, quite separate from the Library. At present, there are too few links either way between the Library and the primary materials databases - they are not tightly integrated, and this reduces the utility of both.
We do not yet have effective enough ways of automatically inserting large numbers of 'outgoing' links from the secondary materials to cases and legislation on AustLII, because the citation patterns in these secondary materials, which are often far less consistent than statutory or judicial citations, produce limited results from our current mark-up software.
For similar reasons, we have few 'incoming' hypertext links from primary legal materials (or other secondary materials) into the major documents into the Library. However, we are considering experimenting with automated insertion of hypertext links from cases, legislation etc. using a small glossary of key phrases such as 'aboriginal deaths in custody'.
6.3 Interaction and current issues - keeping users informed
The project has a number of elements which aim to use the Internet's potential for interaction with its users to provide current information about developments in indigenous legal issues and the reconciliation process. The Reconciliation and Social Justice News Mailing List will provide news to subscribers about developments in the Internet Project and the Library, and a similar list operated for the Council will provide current news about reconciliation and social justice. These e-mail lists may be automatically converted to hypertext ('hypermail').
Taking our cue from the first of the eight items identified by the Council as a key issue in the Reconciliation process mentioned earlier in this paper (i.e. a greater understanding of the importance of the land and sea in Aboriginal and Torres Strait Islander societies), and from the statements on Native Title by the Council's current Chairman, Mr. Patrick Dodson, that an appropriate resolution of the Native Title issue is central to the process of Reconciliation, project staff drew the attention of Library users to the recent announcement by the Clerk of the Senate that electronic petitions were an acceptable means of submitting a petition. The Indigenous Law Centre at UNSW and Fr Frank Brennan SJ decided to sponsor an on-line petition to the Senate and were then given technical support by project staff. As well as having interesting broader implications for the use of the Internet in the democratic process, the on-line petition is generating a significant database of individuals concerned about the resolution of the Native Title issue and more generally concerned at Australia's treatment of its Indigenous Peoples [43] . In its first few weeks, it received 3000 signatories, and the number continues to grow.
6.4 Internet indexing problems and indigenous legal issues
Part of the project involves determining how to best link the Library to other relevant sites concerning indigenous affairs, both overseas and in Australia. The general problems of Internet indexing, and AustLII's approach to them, are set out in 'Indexing Law on the Internet'.
The Australian Links index already contains the start of what will become a comprehensive index to Australian indigenous law materials. The next step will be to use this index to direct the targeted web spider to make those sites which contain material which are significant to the Library searchable via SINO and easily identifiable and accessible through the new SINO interface.
The project also aims to index the major overseas sites for indigenous law. For example, in the present context of the Wik debate, links to current information on land negotiation processes on other jurisdictions will provide valuable legal and socio-political information to indigenous communities and their organisations through information on processes such as the British Columbia treaty negotiations, or on negotiations in northern Québec, on the web pages of the Grand Council of the Crees (Eeyou Astchee).
British Columbia treaty negotiations site
Another topical instance of the Library being utilised by those interested in linkages between Australian and international materials on reconciliation occurred when those responsible for the recent advertisement placed in the UK press to coincide with the visit by the Prime Minister were seeking out the text of the apology made by the Queen to the Maori people in 1985. They turned to the Library to find the information, and links to the New Zealand site (http://www.tainui-corp.co.nz/raupatu/) containing the information are now included in the Library.
6.4.1 Beyond law
One of the Council's key elements of reconciliation is an increased understanding by both indigenous and non-indigenous Australians of the unique historical and cultural circumstances of Australia's indigenous peoples, based on effective community-wide access to detailed information relating to indigenous history, legal position and culture.
Part of the 'Indigenous Links' aspect of the project will assist encourage the exploration of indigenous culture in Australia at sites such as Yotha Yindi's pages, or the Tandanya National Aboriginal Cultural Institute, or from around the world such as the Mayan art and culture of indigenous peoples in Mexico.
6.5 Internet access by remote indigenous communities
The final aspect of the Reconciliation and Social Justice Internet Project arises from the Council's concern that its electronic resources for reconciliation would not be sufficiently available to remote indigenous communities. The project involves connection of a pilot group of such communities to the Internet, and a monitoring and evaluation project on the effectiveness and utility, over a period of time, of their Internet access, both to the project's resources and to more general Internet resources.
One research aim of this project is find how to provide effective access to the same very large and complex collection of materials to groups of people with very different needs. Remote indigenous communities are one of the most important identifiable 'audiences' for this particular set of Internet materials, but they are also a challenging audience to reach effectively via the Internet, for reasons including cultural differences, unfamiliarity with information technology, and poverty. If we can find how to create effective access for remote indigenous communities to this collection, we should be able to generalise the results to create valuable 'virtual views' of AustLII's many other collections of information.
In mid 1997 AustLII wrote to sixteen communities or organisations in the Top End of the Northern Territory whose contact details were provided by the Northern Land Council as being recommended by that Council's staff as appropriate for consideration in the project. Each of them was sent a questionnaire as to whether or not they have computer facilities and, if so, whether their computers are Apple or IBM. Five communities have responded seeking that they be considered and one wrote thanking the Council and AustLII for the invitation but indicating that they already have a functioning web site. After consultation with NT members of the Council, connection through an ISP with a Darwin PoP is expected in the near future.
In addition, the NSW Minister for the Environment has authorised commencement of negotiations between the NSW National Parks and Wildlife Service and the Mutawintji Local Aboriginal Land for the first agreement for returning a significant area of the NSW National Parks estate to Aboriginal ownership and management under a leaseback arrangement similar in broad principles to a number of models applying in the Northern Territory. AustLII is investigating the possibility that, because of the significance of these negotiations for indigenous communities in the eastern states, it may be possible and desirable to connect the Land Council to the Internet under the Council's program. We may include on AustLII facilities so that information on Mootwingee and the negotiations for its hand back can be made available for other indigenous communities or interested parties through the web.
A process for monitoring and analysing the usage by these communities of the Internet (and particularly the Council's resources) will be established, probably involving the following: (i) user-initiated 'feedback' mechanisms via the Internet, for non-systematic collection; (ii) researcher initiated mail-outs (electronic and/or paper) to users of conventional surveys concerning use (iii) periodic site visits (say, quarterly) and interviews at selected communities; (iv) reports by the ISP; (v) reports provided by local 'Australians for Reconciliation' coordinators, organised by the Council; and (iv) computerised collection and analysis of detailed usage pattern information, by the ISP and by AustLII. This research raises significant privacy considerations with which care must be taken.
6.6 Measuring project success
We will be measuring the success of the project by a number of quantitative means, including the following: increases in usage of the Council's Internet resources, at various measurable stages of the project; particular measurements of usage and satisfaction by remote communities; measures of the intensity (and accuracy) of hypertext interlinking between the Council's materials and other materials; other measurable project innovations; overall increase in density of hypertext linkages in all AustLII materials; and overall increases in AustLII usage (difficult to attribute to single causes).
However, the more important measures of success will be qualitative. Overall, we will have to attempt to evaluate and document the extent to which Internet communications have assisted reconciliation, probably by calling on subjective evaluations of other people, indigenous and non-indigenous. The ongoing utility of the resources created will also need evaluation. On the technical side, publication of research papers on the innovations of the project, and their adoption by others, will be the long-term measure.
