Simpson, Tony --- "UN Action on Aboriginal Rights - An Australian Perspective" [1985] AboriginalLawB 65; (1985) 1(16) Aboriginal Law Bulletin 11

• Un Action On Aboriginal Rights-An Australian Perspective

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UN Action on Aboriginal Rights - An Australian Perspective

by Tony Simpson

As pointed out in Weissbrodt’s article ([1985] AboriginalLB 64; 1(16)pg10), this year’s Working Group led to some progress. The Working Group has started on the thorny path of evolving standards which may form the basis of a Declaration on Indigenous Rights.

This year’s working Group on Indigenous Populations was attended by a diverse representation of Aboriginal organisations. including the National Aboriginal and Islander Legal Service Secretariat (NAILSS), the Federation of Land Councils (FLC), the National Aboriginal and Islander Health Organisation (NAIHO), NSW Aboriginal Land Councils, representatives from Tasmania and Department Officers and others (including former NAC members) financed and supported by the Government.

At last year's session the Aboriginal Australians were represented by a large number of organisations. In an historic move, the aims of these groups were unified and strengthened by a joint statement made on behalf of all Aboriginal non-governmental organisations (NGO) in attendance. This demonstration of a commonalityofviewson fundamental principles consi derablystrengthened the sta nding of Australian Aboriginal people in international terms.

The diversity at this year's contingent was not brought together under the umbrella of a common statement of principle even though there was a common thread running through many of the statements. The FLC, in a written submission under the auspices of Survival International, a NGO with Consultative status, said:

Australian Aboriginal and Islander people regard the Australian Government's proposals for Land Rights as an abrogation of its responsibilities and obligations to them. The Government appears intent on removing what limited rights are available to a minority of Aborigines in Australia, in the NT, on the basis that it is not prepared to provide these limited rights to all Aboriginal and Islander Australians.

The Australian Government's Preferred National Land Rights Model if it were to form the basisof any Land Rights legislation would result in the further alienation and exploitation of Aboriginal and Islander people and lead inevitably to the destruction of our society and culture.

It is essential that if Aboriginal and Islander people are to achieve justice and equity that the Australian Government accepts its primary responsibility to ensure that the principles that the Australian and Islander people believe are fundamental to adequate Land Rights are enshrined in legislation.

To do less than this will condemn Aboriginal and Islander people to further exploitation and oppression.

We believe that it is very important that the world community be made aware of the essential contradiction that exists between the public posturing that the Australian Government demonstrates at an international level and its lack of integrity when dealing with the concerns of the Aboriginal and Islander people of Australia.

The NAILSS statement, delivered by Hewitt Whyman, addressed a number of similar issues in the following terms:

When we look at the question of developments relating to the promotion and protection of human rights and fundamental freedoms of indigenous populations, we must realise that, whilst legal standards can be enumerated by the various organs of the United Nations, it remains fundamentally with Member States to have the moral fortitude not only to ratify and adopt but to give full effect to these standards. We stress that one of the most important aspects of standard-setting is therefore the accountability of States. The United Nations must encourage an atmosphere in which there are diplomatic consequences for States' compliance or non-compliance with standards.

In this regard we regret to inform this Working Group that standards appear to have little application to the political realities in Australia today.

The views shared by Australian Aboriginal representatives were acknowledged in the Working Group report in the following terms:

The right to self-determination was the subject of many statements by indigenous speakers. While some spoke in this context of autonomy or self-government as necessary for their control over the land as well as their economic, social and cultural systems, others spoke of the right in a broader sense barring discovery, conquest, the concept of terra nullius, and occupation as means of depriving them of sovereignty. Several indigenous observers also emphasised and need to respect treaties freely concluded between them and States, in accordance with the principle of pacta sunt servanda, which should be reiterated in the new standards. The NAILSS delegates also delivered a draft declaration of principles on behalf of six UN recognised NGOs and 17 other indigenous organisations.

In reference to the draft, Paul Coe of NAILSS told the Working Group:

This document represents our best effort thus far. We are all very well aware that it is far from perfect, but we feel it is a suitable point of beginning. The point of this document is not to commit this Working Group for Governments, or indigenous peoples themselves to any particular words, but to identify clearly the issues and principles we feel the Working Group must address. These include:

•	The right to life. and the right of self-defense against acts of invasion and genocide.
•	The right to self-determination, self-govern ment and autonomy, including the rights to protect their traditional economies, develop their own educational institutions. and live in accordancewiththeirown!awsandtraditions.
•	The right to land. including the protection of lands wrongfully taken from them. and compensation for wrongful takings.
•	Cultural rights, including respect for indigenous religions and languages. and indigenous control over material culture (including the repatriation of items of major cultural significance).

In addition to the enumeration of rights. our proposal details the obiligations of States for the protection of indigenous rights. For example:

•	The duty to resolve disputes with indigenous peoples by agreement.
•	Respect for treaties made in the past as well as commitments entered into in the future. and
•	Standing for indigenous peoples to direct concerns to international forums.

I've merely summarised the working text we propose. The full text will (and did) appear as document E/CN.4/Sub.2/AC.4/ 1985/ W P .4/Add.4.

The Government detailed its proposals in relation to its actions without conceding that it had deviated from previously announced positions. Their representations noted, amongst other things, that:

The Government believes that the proposals. which provide a reasonable balance of interests, are consistent with Government policy and represent a genuine effort to achieve meaningful and durable land rights justice for Aboriginal Australians.

The fact that the Working Party has, as pointed out in Weissbrodt's article, suggested some proposals which could form the basis of a draft declaration is an encouraging sign. This general report reflects the continual input of groups such as NAILSS, FLC and NAIHO. The suggestion that the Working Group meet for eight days instead of five is an indication of the increasing importance of the Working Group.