Simpson, Tony --- "On the Track to Geneva" [1986] AboriginalLawB 24; (1986) 1(19) Aboriginal Law Bulletin 8

• On The Track To Geneva
• Genocide
• Indigenous Rights – A Territorial Question
• Self Determination

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On the Track to Geneva

by Tony Simpson

Aboriginal organisations sent another delegation to this year's United Nations Commission on Human Rights (the Commission) in Geneva.

The delegation was spearheaded by the National Aboriginal and Islander Legal Services Secretariat (NAILSS) a Non-Government Organisation (NGO) recognised by the UN and the New South Wales Aboriginal Land Council (NSWALC).

A series of papers was delivered which raised Issues that were relevant to Australia in particular and to Indigenous peoples Internationally. The Commission indicated Its recognition of the neglected status of indigenous peoples by authorising an increase in the sitting days of the Working Group of Indigenous Peoples (WGIP). Hopefully the UN action on Indigenous rights will accelerate as a result.

The following extracts are an illustration of the Issues raised by the delegation.

Genocide

Whilst many people believe that genocidal tendencies and actions are only properly attributable to Hitlerite Nazis other highly respected commentators realise that similar motivations have influenced colonial and continuing attitudes to Aboriginal peoples.

In a speech dealing with the latest report of the UN sub-commission Paul Coe told the Commission that:

It is important to remember that indigenous peoples have often suffered the results of genocidall practices. One of the most notorious examples was the destruction of Aboriginal society in the Australian state of Tasmania. The few remaining Aboriginals living in a traditional context were forcibly removed. Their descendants are still struggling for their survival as a people. Many other indigenous peoples continue to suffer similar effects of genocidal activities. Genocide according to the Convention adopted forty years ago means any of the following acts, committed with intent to destroy, in whole or in part, a national, ethnical, or racial or religious group as such:

1 killing members of the group;

2 causing serious bodily or mental harm to members of the group;

3 deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

4 imposing measures intended to prevent births within the group;

5 forcibly transferring children from the group to another group;

Over the last two centuries Aboriginal peoples have suffered the consequences of all of the acts contained in (1) to (5) mentioned above. We refer to the forcible transfer of children. This continues to occur in Australia. A recent study indicated that as many as 5000 Aboriginal children have, in living memory, been transferred from their group. This process has led to irreparable harm to the individual and to the community. It was designed to integrate or assimilate Aboriginal people into European ways. This resulted in a denial of their rights to their own culture. It has disrupted the Aboriginal society and led to enormous human destruction.

We refer the commission to the frank and valuable study on genocide prepared for the Subcommission by its Special Rappatuer Ben Whitaker which was discussed at the 38th session of the Subcommission. We join with the Special Rappatoir when he says: "genocide is a constant threat to peace".

Further on he says, "The scrutiny of world opinion and honest recognition of the truth about painful past events have been the starting point for the foundation of reconciliation. He notes that, "genocide particularly of indigenous peoples has also often occurred as a consequence of colonialism, with racism and ethnic prejudice commonly being predisposing factors. In some cases occupying forces maintain their authority by the terror of perpetual threat of massacre".

"The British almost wholly exterminated the indigenous people when colonising Tasmania as late as the start of the nineteenth century. Africa, Australasia and the Americas witnessed numerous other examples. The effect of genocide can be achieved in different ways; today insensitive economic exploitation can threaten the extinction of some surviving indigenous peoples."

Indigenous Rights – a Territorial Question

As we have previously indicated the root of the violation of human rights of Indigenous peoples is often territorial. The dispossession of our territories has led to the denial of our economic and cultural base.

This dispossession was often attempted to be justified on the basis of racist and paternalistic notions of superiority. The idea of the equality of peoples so widely recognised in UN Instruments and resolutions is painfully absent in reality. The gap between ideals and practice is evident even in countries which are actively promoting the rights of indigenous peoples. The situation in Australia provides a useful example.

The Australian Minister for Aboriginal Affairs explained to the Third Session of the Working Group on Indigenous Populations that:

"My Government believes that increased international attention to the particular problems of indigenous populations is fully justified and indeed overdue. Many indigenous people have suffered serious dispossession and dispersal."

The Honourable Minister also indicated his Government's commitment to self-determination in the following terms:

"The funding of independently controlled Aboriginal structures underline our commitment to self-determination."

The gap between these lofty expressions and the current developments highlights the difficulties facing Indigenous peoples.

The Australian Government recently indicated that the following conditions would apply to the so called independently controlled Aboriginal structures:

(i) An organisation shall not appoint an officer who, in the opinion of the Minister is not fit for that office.

(ii) Where the Minister believes, that a person is not a fit and proper person he may give notice to the organisation. That it shall not be entitled to funds for so long as that person remains in office.

Self Determination

The UN was told that:

A primary and often mentioned objection to the application of the right to self determination to many indigenous peoples is that it will lead to the fragmentation and destruction of existing states. We agree that world peace and harmony will not be enhanced by largescale fragmentation. As a people who have experienced the effects of interference with their sovereign rights, we fully support the sovereignty of nation states which effectively represent the peoples of its territory. However, one must carefully scrutinise the extent to which the existing states are a real and accurate expression of the rights and aspirations of the people or peoples within the boundaries of a particular state. Artificial boundaries reinforced by connivance and subterfuge and protected by military might do not effectively contribute to enduring peace and harmony. On the contrary wherever these states are, and whatever their formal and structural political colour, they mask the same quality of oppression that the decolonisation process was directed to combat.

Resolution 2625(XXV) adopted and proclaimed the declaration on Principles of International Law Concerning Friendly Relations. The declaration provides in part that "the establishment of a sovereign and independent state, the free association or integration with an independent state or the emergence into any other political status freely determined by a people constitutes the modes of implementing the right of sell determination by that people."

Towards the end of the declaration a rider is added to the effect that:

"...nothing in the foregoing paragraphs shall be construed as authorising or encouraging any action which would dismember or impair totally or in part, total integrity or political unity of sovereign and independent states, conducting themselves in compliance with the principle of equal rights and self determination of peoples, as described above and thus possessed of the government representing the whole people belonging to the territory, without distinction as to race, creed or colour.

An example of these legal principles can be found in an analysis of the situation pertaining to the territory of Australia.

Australia is a federation comprised of seven former British colonies, which joined together under a single constitution in 1900. The first of these colonies was a penal outpost established by military forces in 1788. The British at that time asserted sovereignty over the bulk of the Australian continent on the basis of the discovery of the territory to which the discredited doctrine of Terra Nullius applied. The remaining colonies were established during the next century. Colonisation of the entire continent proceeded in a piecemeal fashion up to and Including the twentieth century. Aboriginal people made no treaties, surrendered no land voluntarily, and did not acquiesce In colonisation by the British. Armed resistance and retaliatory violence continued as late as the 1940s. after which Aboriginal people began to organise effectively to challenge the Anglo Australian domination by legal and political means.

In 1984 during the third session of the working group on indigenous populations the Australian Minister for Aboriginal Affairs, the Honourable Clyde Holding asserted Australia's present position in the following terms:

"Neither the granting of land rights nor the recognition of prior Aboriginal occupation and ownership in any way puts Aboriginal sovereignty in question. Given the opportunity Aboriginal people will make their own future as citizens of the Australian nation. Sovereignty is vested in the Crown and Parliaments for one nation of people."

Aboriginal peoples of Australia reject the unilateral assertion that the Australian territory is peopled by just one nation.

Situations such as those outlined above require redress. A legitimate procedure would be to apply the processes consequent on the proper application of the principle of sell determination.

The UN could supervise referenda; to be followed by negotiations monitored through the UN machinery. The outcome of such a process would, of course, depend on the circumstances: it will depend on the particular expression of will by the people concerned. We outlined the range of possibilities above.

The application of such a process would open the way for the first time to an honourable and legitimate relationship between the peoples colonised and the institutionalised colonising forces.

In paragraph 22 he notes "that genocide, far from being only a matter of historical study is a modern danger to civilisation". The Special Rapporteur (para 30) notes that some members of the Subcommission have proposed that the definition of genocide should be broadened to include cultural genocide or ethnocide. He goes on to refer to the special study on indigenous populations (p/cn.4/sub.2/1983) which emphasised the need for special and urgent attention of cases of physical destruction of indigenous communities ie (genocide) or destruction of indigenous cultures is (ethnocide).

The settlement and colonisation of Australia by British interests led to the dispossession of and disruption to Aboriginal peoples. The subtle balance between the Aboriginal culture and the environment was totally destroyed by the invasion of colonial forces. The destruction by direct and indirect means caused countless peoples to be totally annihilated. Some survived. The repercussions are still felt and suffered by the descendants. The process continues.

In many of the countries and the areas mentioned by the Special Rapporteur the nature of the genocidal practices have changed. In Australia for example the unbridled brutality, which led to largescale massacres, has admittedly abated. However, more subtle processes continue. These also have a continuing genocidal affect. The arrogance displayed towards indigenous Australian people is epitomised by Australia's failure to reconsider the fundamental basis of its claim to territorial sovereignty. The discredited racist doctrine of Terra Nullius, based on the assumption that Aboriginal peoples are unworthy of recognition, lies at the heart of the issue. The failure by the original British colonists to recognise the efficacy, legitimacy and integrity of Aboriginal peoples' culture and their legitimate claim to possession precipitated and justified the original genocidal acts.

The failure of modern Australia to denounce Terra Nullius and its implications perpetuates attitudes and conditions which will continue to affect Aborigines In a similar manner as did the original primary genocidal acts.