Aboriginal Law Bulletin
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by Tony Simpson
Australia is in violation of its international obligation to the country's Indigenous people according to Professor Erica-Irene Daes, respected international jurist and longtime human rights activist who was re-elected this year's Chairperson of the Sixth Session ofthe United Nations Working Group in Geneva.
The Working Group (WG) consists of five experts elected by the subcommission on the Prevention of Discrimination and Protection of Minorities. It was established in 1982 with a mandate to monitor and review the situation facing indigenous people and to draft a Universal Declaration of Indigenous Rights.
The government sent a delegation of eight people headed by Charles Perkins, Secretary of the DAA. While lack of resources prevented Australian non-governmental Aboriginal organisations from sending a large delegation, National Aboriginal and Islander Legal Services Secretariat (NAILSS) and the Coalition of National Aboriginal Organisations were represented by Paul Coe and Peter Yu respectively. The Aboriginal Law Centre provided a limited back-up service and observer team.
This year's WG was preceded, as in previous years, by a meeting of approximately seventy-five indigenous representatives from around the world. The Indigenous Pre-sessional Meeting focussed on Chairperson Daes' Working Paper containing preliminary draft principles, which it said was unacceptable as currently drafted because it did not incorporate the Indigenous Declaration. Specific inadequacies included:
(a) the right of self-determination of indigenous nations and peoples were not adequately addressed;
(b) nor was the collective right to land and territory;
(c) the importance of land and resources was not covered; and
(d) the significance of treaties and treaty-making needs elaboration.
More general inadequacies related to the need to address emerging human rights, such as the right to peace; to protect the environment; to development; and to humanitarian assistance. Furthermore, the WG was requested to research and make recommendations for the provision of mechanisms to ensure full implementation of indigenous rights and to arrive at a clear understanding of the relationship between collective and individual rights. The WG was told that various draft documents would be distributed to indigenous communities, with the 1987 draft of 22 principles forming the basis for discussion and consultation with a view to the development of a revised draft Declaration for presentation to the 1989 Pre-sessional Meeting.
This item gave government and non-government parties an opportunity for constructive dialogue. Government representatives made the following points:
(a) the vulnerability of certain groups in India has been recognised by that government, which has taken relevant action;
(b) the Phillipines government referred to the success of a number of indigenous people in maintaining their pre-Hispanic culture, customs and traditions despite common historic problems, namely the loss of ancestral lands, political subjugation and lack of economic development.
(c) The Japanese government, as a necessary first step to open discussion, recognised that the Ainu people exist as an indigenous people who need, amongst other things, measures to assist in the protection and preservation of their social and cultural heritage.
(d) Governments such as Indonesia, Bangladesh and Burma adopted confrontationist attitudes to the discussion on developments.
The difference between the views of indigenous people and governments drew comments from Niall McDermott of the International Commission of Jurists, supported by 26 non-indigenous non-government organisations (NGO). He compared the reports of governments containing the goodnews stories to the reports indigenous people themselves gave on attempted genocide, torture and disappearance, treaty violation, denial of subsistence, inadequate food and shelter, and other fundamental human rights abuses.
NAILSS reminded the WG of a number of promises made and subsequently broken by the Australian Government, including the National Land Rights Proposal, dropped after a virulent racist campaign.
The Australian Government acknowledged that the doctrine of terra nullius was a legal fiction, that according to the prevailing views of the government wipes out the rights of indigenous people at the stroke of a pen. An alternative is that the inappropriate application of the racist doctrine of terra nullius to the territory of Australia means that indigenous pre-existing rights are not extinguished. The Australian delegate also stated that until the dispossession of the Indigenous people has been recognised, Australians cannot honestly face either their past or their future. Since Aboriginal groups, however, would not accept that they have been either legally or practically dispossed, Australia's treatment of its Indigenous peoples had been the subject of scrutiny in a number of international reports, as well as in the domestic media. They informed the WG of developments such as the Royal Commission into Aboriginal Deaths in Custody and the Law Reform Commission's Enquiry into Customary Law.
Peter Yu from the Coalition of National Aboriginal Organisations made a strong statement, endorsed by NAILSS, distinguishing economic or political concessions from the recognition of the distinct nature' and inherent rights of Indigenous people as the first people of Australia.
NAILSS highlighted a number of problems with the Royal Commission into Aboriginal Deaths in Custody. They also brought to the WG's notice the problems faced by the Toomelah Community and emphasized that these are not isolated. NAILSS told the WG of the NSW Greiner Government's illegal measures to seize the assets and control of Aboriginal Land Councils.
The Inuit Circumpolar Conference, indicated that a lack of coherent and comprehensive governmental policy continued to frustrate indigenous concerns. The ICC was proceeding with the formulation of proposals relating to a regional conservation strategy. The report stressed the importance of the right to land and resources,
A number of speakers condemned the arbitrary killings, torture and other illtreatment of Indigenous people.
The Chairperson Madame Daes had been entrusted by the last Session of the WG to draft principles which would form the basis of a Universal Declaration of Indigenous Rights (UDIR). When presenting the text she invited critical analysis and pointed out significant features including: the use of the term indigenous 'peoples' rather than 'populations'; the combination of indigenous and collective rights with an emphasis on the latter; the protection of indigenous identities as manifested in languages, religions, traditions and customs; the introduction of Indigenous autonomy with meaningful customs and powers; the reaffirmation of land and resources rights; and the absence of a definition of 'beneficiaries'. Chairperson Daes suggested that written comments could be submitted prior to the next session of the WG. She expressed hope that such debate could finally generate consensus. Observers and experts noted, inter alia, that: the accent in the Declaration should be on collective rights; a distinction should be drawn between autonomy and independence; the forms of autonomy should be determined by the free consent of the indigenous people concerned and should focus on the rights of indigenous peoples rather than on specific State obligations.
The NAILSS statement pointed out that the language of the declaration must reflect the collective nature of the rights to be conferred. Indigenous peoples' complex and especially spiritual relationship with the earth must be expressed in territorial terms. It must be based on the recognition that indigenous peoples and nations are not only subject to direct and violent attacks but also to more subtle forms of aggression including various forms of duress and psychological torture. Indigenous peoples' existence is threatened by States' denial of their cultural values as much as the attacks on their physical integrity. Coe emphasized that all matters affecting the territories of indigenous peoples and nations must be determined by their informed consent freely expressed through their own institutions. He stressed that the consent must be free and not obtained by duress, enticements or "other trinkets".
A call was made to the WG to keep other inter-governmental bodies such as the Commonwealth Heads of Government Meeting (CHOGM) informed about recent developments in relation to indigenous rights and perspectives.
An outline for a Treaty Study by Special Rapporteur Martinez was endorsed by the WG. The purpose of the study was outlined as being the effective protection and promotion of Indigenous rights through ensuring a solid, durable and legal basis for current and future relations between indigenous people and States; it would be structured into three parts: The original treaties; contemporary significance; and future applicability. The study has obvious interest for Australia in the context of current treaty proposals. NAILSS and the Coalition called for international monitoring of the proposed treaty process in Australia. They emphasised the need for a mutually accepted process and mechanism.
A large number of indigenous people were assisted to attend the WG in Geneva this year by the funds available through Voluntary Fund. Unfortunately, no applications were received from Australian Aboriginal individuals or groups. Any enquiries can be directed to NAILSS, the Aboriginal Law Centre or directly to the Secretary of the Voluntary Fund (Alfredsson) at the UN Centre for Human Rights in Geneva.
The WG adopted the indigenous position that their organisations be involved in determining the participants in the upcoming UN Seminar "The Effects of Racism and Racial Discrimination on the Social and Economic Relations between the States and Indigenous Peoples". Australian delegates suggested that it should be held in Australia. If so, it has been suggested that indigenous organisations in Australia organise and host a Pre-sessional Indigenous Meeting during the week prior to the Seminar, for the purposes of orientation, discussion, information and cultural exchange.
Representatives of the Grand Council of Crees made a significant impact, emphasizing their rights to autonomy and explaining their objection to the term 'populations': "The use of this term by the UN is degrading, insulting and inappropriate. We use it to refer to animals and insects."
The Haudeshaunee Nation called for a moratorium on the forced relocation of Hopi and Navajo families in the United States.
NAILSS noted the threat that hostile governments such as the NSW Greiner government can pose for progress in the area of Aboriginal rights. A bitter disappointment was the Subcommission's decision not to act in relation to human rights violations in East Timor.
The following resolutions were adopted by the Subcommission:
1. L32: Endorsed the decision relating to Daes' framework for drafting the UDIR which means that the WG will finalise the negotiations on the draft, as much as possible (!) before referring it onto its parent bodies. The name of the agenda item was changed to "Discrimination Against Indigenous Peoples".
2. L52: Approved the Treaty Study.
3. L55: Recommended that the UN program of advisory services be extended to cater more adequately for the needs of indigenous peoples.
4. L49: Invited Chairperson Daes and Judge Carey of the US to prepare a report on the relocation of the Hopi and Navajo.
5. L45: Recommended that 1993 be designated as the Year of Indigenous Rights.
6. L63: Decided that the proposed UN meeting of experts on indigenous self-government recently approved by the General Assembly be organised in consultation with indigenous organisations and include appropriate indigenous representatives.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1988/50.html