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Clarke, Geoff --- "ILO Convention 107 -- Revision or Reversion?" [1989] AboriginalLawB 46; (1989) 1(40) Aboriginal Law Bulletin 4


ILO Convention 107 – Revision or Reversion?

by Geoff Clarke

The Revised Convention as adopted at the International Labour Conference in Geneva last June is now known as ILO Convention No. 169. The Commonwealth Government Minister with portfolio responsibility for the Convention is the Minister for Industrial Relations. He must report to Parliament within 12 months on the progress towards Australian ratification. Individuals and organisations with doubts about the value of Australian ratification should not delay in making their position known to the Government.

From the National Coalition o f Aboriginal Organisations

Having now attended both the 75th and 76th sessions of the revision of Indigenous and Tribal Populations Convention 1957 (No 107), I can only express my bitter disappointment at the way in which most nation states, in particular the Western group, including Canada and Australia, along with India and Japan, conspired to undermine any principles the revision process may have established which would have recognised and protected indigenous peoples' rights world wide. The reactionary stance of the bulk of Latin American States, predictable as it was, was also damaging. In fact, what was produced was a document that authorises and legitimises Governments' self serving and destructive policies which continue to protect their interests at our expense.

The document is inherently flawed. It contains a series of contradictions. In the preamble, lip service is paid to key elements demanded by indigenous people; prior to and during the revision process, indigenous representatives carefully explained that for the revised Convention to be effective, it would have to recognise that indigenous peoples had the right to control their own institutions, territories, ways of life, and economic development. The preamble recognises the aspirations of indigenous people to exercise such control, but it does not recognise or establish that aspiration as a right. The preamble purports to remove the assimilationist orientation of the earlier standards. However, because of the many flaws in the convention, the effect is still assimilationist.

The assimilationist effect of the Convention can be seen in many articles that touch the most important issues of indigenous survival - customary law, land and resource rights, health and education. In no case is indigenous consent required as a prerequisite for government action. Although the convention no longer requires indigenous integration, it continues to allow the government to maintain integrationist policies and practices without our consent. For example, Article 6 contradicts the preambular claim that the new standards were adopted with a view to removing the assimilationist orientation of the earlier standards. Article 6(1)(a) simply provides that the peoples concerned be consulted through "appropriate procedures" and "in particular through their representative institutions". Most indigenous people do not have representative institutions as such. The emphasis on such an institution is by its very nature assimilationist! However, it gets worse. The fact that people are only being consulted inevitably removes the power to resist; it is only if the people have the right to say no that assimilationist pressures can be resisted.

The bottom line is that the lip service in the preamble that is paid to indigenous control amounts to hypocrisy.

The ILO procedures ensured that the odds were stacked against there being any effective indigenous participation. Whilst individual indigenous people acted as advisors to the main participants (that is employers, governments and trade unions), the ILO process did not allow for participation by authentic representatives of indigenous institutions. The bottom line is that indigenous representatives do not have a vote, and effectively do not count in this process. The manipulative nature of the proceedings was highlighted by the manoeuvres that were taken before the vote on Article 6. When Article 6 was first being considered, the labor group[1] (at the insistence of indigenous representatives) proposed that indigenous consent be required "whenever consideration is being given to legislative or administrative measures that may affect them directly". The proposal was withdrawn when it did not receive broad support. The Committee then considered a provision that had been written into the draft Convention at the suggestion of the Scandinavian governments, requiring that consultations at least be carried out in good faith "with the objective of achieving agreement or consent..." When it appeared from the debate that this weak proposal would be accepted, the Chairman (Bolivia) suspended the formal session while he and members of the ILO Secretariate attempted to negotiate out any reference to agreement or consent. Similar and more successful manoeuvres were employed to cut the heart out of land and resource rights.

These manoeuvres were done to weaken Article 6, which is a key provision. Its flawed nature now allows governments to pursue the assimilationist policies that they have denounced in the preamble of the Convention. As the Convention now stands, it is a dishonest instrument. It fails to meet or address the demands, aspirations and inherent rights of indigenous people world wide.

Academic and legalistic language used in the revision process and contained in the revised Convention has, in my opinion, been designed to restrict and retard the development of effective international principles relating to indigenous people which could be used as an effective international legal challenge to national policy.

We see for the first time in international legal history, an attempt (supported by the Australian government) to give the term "peoples" a restricted meaning. Article 1.3 provides that the use of the term "peoples" in the Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law.

This blatant racism and discrimination is intended to restrict, deny or otherwise impair the exercise of certain fundamental human rights of indigenous peoples, in particular the right to self-determination. Without the recognition of indigenous peoples' right to self-determination, and more particularly the application of the right to self-determination to indigenous people, their "laws, values, customs and perspectives"[2] will continue to be eroded.

Australia's image as a world promoter of international human rights is now tarnished. There were situations during the revision process in Geneva where, if Australia's vote had gone the other way, the result would have been more in the interests of indigenous people. For example, a compromise proposal that would have given some amount of recognition to the inalienability of indigenous territories was defeated in a tie vote, with the Australian representative voting against the proposal. The final version leaves the power to decide whether indigenous lands can be alienated entirely with the government.

The Government claim that it is prepared to negotiate a treaty with indigenous people of Australia must be questioned in the light of the position adopted by the Australian Government at the ILO revision process. For any treaty process to even begin, the Australian Government would have to recognise that it had to negotiate with indigenous Australians on the basis that their free and informed consent was a necessary pre-condition to any outcome.

The present Government's commitment to Labor Party policy must also be questioned in the light of the position which they adopted at the revision process. For instance, they advocated "secure title" at the International Forum; what does this mean? Surely this is at odds with the Labor Party position in relation to inalienable title.

Another dangerous deviation by the Government from party policy was in relation to control over mining. Article 15(2) of the revised Convention allows governments to establish or maintain procedures through which they shall consult indigenous people with a view to ascertaining whether and to what degree their interests would be prejudiced before undertaking or permitting any programs for the exploration or exploitation of mining resources on their lands. Again this is a far cry from any effective control. It does not even provide for effective influence. The Article also provides that the particular people concerned shall "wherever possible" participate in the money that's earned from the mining. These provisions are vague and weak.

The deception continued when the discussion focussed on the term "consult". The indigenous caucus proposed the alternative language, "obtain the informed consent of the peoples concerned". The weakness of the term "consult" is highlighted by the Australian Government's own actions. Prior to the ILO Conference this year, the Australian Government's official response to the ILO questionnaire included the statement that the Australian Government had consulted the major indigenous peoples' organisations. The Australian government sent out a document, to which, they claim, they received no reply. They further claim that a sole meeting between the ACTU and the National Coalition of Aboriginal Organisations was their official contact in relation to ILO 107.

The deceitful hidden agenda of the Federal Government's international actions and presentations must be exposed so that the Australian community can make their own assessments. The Australian electorate have in the past three elections given a moral mandate to the Hawke Government to implement a social justice package to Aboriginal people which would go towards achieving justice and equality. For any justice package to be effective, there must be a recognition of the right of indigenous people to control their own destiny.

The question now remains: Will Australia ratify Convention 107 1989 as presently revised? The Government's earlier reason for not signing the 1957 version of the convention was that it was too paternalistic and that the assimilationist language did not measure up to its high policy standards. What will the Australian Government choose to do now that this flawed document has been voted on by them at the 1989 Conference? In the eyes of indigenous people, the principles expressed in the ILO Convention restrict and limit their opportunities and rights. The Convention does not set reasonable standards which may be used by indigenous communities to protect their rights, their territory, and their future.

For previous coverage on the ILO revision process see AboriginalLB 24 pp10-11; 28 pp9-10; 34 pp12-13: Supplement to Aboriginal Law Notes 89/6 June 1989.


[1] The ILO is tri-partite; employers, government and labour representatives separately caucus each morning, and representatives of each group later present a joint position to the plenary session.

[2] Preamble to the Revised Convention. On p 9 of this issue is a short statement on the policy of the Department of Aboriginal Affairs (Cth) in respect of the revision of Convention No 107.


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