Aboriginal Law Bulletin --- "UN Action on Aboriginal Rights" [1985] AboriginalLawB 44; (1985) 1(14) Aboriginal Law Bulletin 1

• Un Action On Aboriginal Rights
• Aboriginal Participation
• 1985 Nailss Particiapation At The Commission
• Fourth Session Of The Working Group
• Conclusion

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UN Action on Aboriginal Rights

Since World War ii the United Nations has focused attention on the development and implementation of principles of human rights.

During the 1970s the UN Sub-Commission initiated a study on indigenous populations. This was the first UN initiative, subsequent to the early work done on ILO Convention 107 to concentrate on the specific problems faced by indigenous populations. The personnel involved in the preparation of the study faced a formidable task; the study was not finalised until 1984.

However, activities stimulated bythose associated with the study led to the formation of a sub-commission working group which in general terms was required to investigate the situation facing indigenous populations. The establishment of the working group and the details of its procedures and activities during its first three years are well documented. In short, the working group is empowered and required, amongst other things, to recommend to the sub-commission in its yearly reports principles which could form the basis of a declaration of the rights of indigenous populations which, in turn, could lead to the drafting of a covenant on the rights of indigenous populations. This drafting process will involve complex UN machinery including the General Assembly. An optimistic view could not see the process concluding within five years.

The value of the working group cannot be underestimated. Firstly, the working group places the issue of Aboriginal Rights on the UN yearly calendar. If skilfully and diplomatically used this platform can focus international attention onto Australia's response to Aboriginal claims.

Australia's position in relation to the working group is of great importance. Without a doubt it has constantly and stridently supported a constructive and progressive line. For this it has and must be commended. Secondly, the benefits of a covenant, or to a lesser extent a declaration, will be that it eslablishes an international yardstick against which state policies and programmes can be measured. In the case of a covenant in the form of a multi-lateral treaty, similar for example, to the International Covenant on Civil and Political Rights, the rights contained therein will be binding on state parties to the covenant. For example, National Land Rights legislation would, if Australia had ratified the covenant, have to be required to conform to the provisions of the covenant. Given the high profile adopted by Australia during the early days of the working group, it will be difficult for future governments to reverse the commitments made to date.

Aboriginal Participation

The first major contribution made to the working group by Aboriginal groups was in 1983 when a delegation organised by National Aboriginal and Islanders Legal Services Secretariat (NAILSS) attended the second session. Representatives of the Federation of Land Councils (FLC) also attended this session.

During 1984 a delegation attended the fortieth session of the United Nations Commission on Human Rights (UNCHR) to monitor the progress of the working group's report. Statements were made to this session of the Commission by NAILSS Chairman, Paul Coe, highlighting the dispossession of Aboriginal Australians and of the continuing destruction caused to Aboriginal communities by European settlement. He canvassed a wide range of issues, especially the effective denial of any form of the right to self-determination.

The next cycle of the UN machinery commenced with the third session of the working group during July 1984. A large Aboriginal contingent attended including representatives of NAILSS, National Aboriginal & Islander Health Organisation (NAIHO), Secretariat National Aboriginal & Islander Child Care (SNAIC), Land Councils and the National Aboriginal Conference (NAC). Each of the delegations made a presentation which related to its specific area of concern. However, a major development was the joint statement made by Paul Coe on behalf of all the delegations. In a speech which ranged over a wide variety of issues, Coe returned to the theme of land rights stating that for land rights to be meaningful communities must have control over land use including mining activities and that they must have the ability to live according to their own cultural values. The Minister for Aboriginal Affairs also attended this session. He was accompanied by a large group of advisers including Mr Perkins, Head of the DAA. He delivered a powerful speech which was largely based on his ill-fated resolution. The speech contained the commitment to legislate on the basis of the Five Principles.

A NAILSS delegation also participated in the subsequent meeting of the sub-commission. This allowed NAILSS to:

1. Monitor the progress in the sub-commission of the working group's report.

2. Assist in the draffngof resolutionsrelevanttothe worker t heworking group. These resolutions covered three main areas:

i) Future work of the Working Group including a requestfor the Working Group to hasten its progress.
ii) To give support to the invaluable Cobo Study (final part) which contained the recommendations and conclusions which were being presented to the sub-commission.
iii) The establistiment ot a voluntary trust fund to assist indigenous people to attend future sessions of the working group.

The sub-commission eventually adopted resolutionswhich are essentially based on drafts submitted by NAILSS and the North American Indian NGO, the Four Directions Council. Two of these resolutions required further action by the UNCHR and Economic and Social Council (ECOSOC).

During the meetings of the sub-commission the members of the working group - all of whom.are members of the sub-commission - do not have a formally distinct status. Like other "experts" on the commission, the weight of their views on subjects within their field of expertise is, however, important. The support of the working group members for any action bythe subcommission is imporlant then on a practical level but not crucial in formal terms.

The internal machinations of the sub-commission are complex; most often the most difficult negotiations and decisions are conducted and made informally behind the scenes.

The entire process can be best described as an attempt at playing four-dimensional chessagainstan opponentwhose entire back-line, apart from the King, is invisible.

Although the sub-commission members are "independent" of their governments, many in fact also represent, or have represented, the govemment in an official capacity. For example, the representatives of USSR,Yugoslavia, Cuba, Bangladesh. It is interesting to note that no Australian has served on the subcommission.

1985 NAILSS Particiapation at the Commission

NAILSS representatives also attended the 1985 session of the UNCHR. The objectives of this delegation included:

1. To arrange support for the resolutions on indigenous populations which stemmed from the activities of the previous sub-commission session.

2. To inform the Commission and the international community generally of the present governments recent departure from its previously announced policy.

3. To consolidate support for NAILSS application (to ECOSOC) for consultative status.

The NAILSS team feels that the objectives were realised. Firstly the Commission adopted three important resolutions which consolidated the work and the position of the working group. The Australian government's consistent support of these resolutions was extremely important in their eventual success. Due praise must be given to the Australian officials who participated in this process.

Secondly, NAILSS Chairman, Paul Coe, delivered a strong speech developing the argument that the right of self-determination was applicable to Aboriginal Australians. He stressed, amongst other things, the disappointment felt by members of Aboriginal communities as a result of the apparent departure by the government from its previously announced position. The governments actions were placed in the context of 200 years of deception, destruction and dispossession. Coe's speech drew a strong response from the floor of the Commission. In fact, the Australian Embassy was constrained to reply to Coe's speech.

Thirdly, the support that the NAILSS representatives were able to muster for its application for NGO status was crucial in the eventual success of this application.

Fourth Session of the Working Group

The working group held its fourth session during the week ending 2nd August last. Given the crisis position of Aboriginal politics in Australia today, the activities surrounding the working group are of the greatest interest and importance. Prior to this session of the working group, a large body of indigenous people met in what has been termed a pre-sessional strategy meeting. This meeting was organised by intemationally recognised NGOs including NAILSS. In addition to the NAILSS delegates in attendance, also in attendance were representatives from the NSW Land Council, the Federation of Land Councils and other organisations. Reports to hand indicate that the Australian representatives played a powerful and pivotal role in the drating of a consensus document which contained an outline of principles relevant to indigenous populations. Reports indicate that Paul Coe was appointed by the pre-sessional group to present the consensus document to the working group.

The report of this year’s session is not yet available. Complications surrounding the election of this year’s sub-commission chair have delayed the selling of the working group report.

One of the interesting aspects of this years working group was the position of DAA permanent head, Charles Perkins. Mr Perkins' brief it seems was to defend the government’s present position on land rights. It must be remembered that during last year’s working group session the Minister of Aboriginal Affairs gave an unequivocal commitment to deliver a land rights package based on the ill-fated five principles. The government’s reported withdrawal of its Preferred Position Paper will no dubt have eased the embarrassing position faced by Mr Perkins.

It is anticipated that the working group will reach agreement on some relevant principles. It is anticipated that some of the easier questions will be answered and forwarded to the sub-commission. However, until such time as the report is presented, the situation remains unclear.

Conclusion

Aboriginal participation in the United Nations process is definitely raising the profile of the issue generally. Aboriginal representatives are able to see that the UN is not a mystical fountain of justice. They are exposed to the reality of the UN as a complex political bureaucratic machine which moves very slowly. The Australian officials representing the govemment are highly skilled operators of this machine. Benefits can be obtained from the process. However, these benefits will not be realised tomorrow.