Department of Aboriginal Affairs --- "The Australian Government and Indigenous Peoples' Issues" [1989] AboriginalLawB 49; (1989) 1(40) Aboriginal Law Bulletin 9

• The Australian Government And Indigenous Peoples’ Issues
• International Labour Organisation (Ilo)
• Working Group On Indigenous Populations (Wgip)

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The Australian Government and Indigenous Peoples’ Issues

The Department of Aboriginal Affairs

The Australian Government has consistently supported the consideration of indigenous peoples' issues in various international forums. The following sets out the Government's role and position in relation to two such forums in which there has been recent activity.

International Labour Organisation (ILO)

In June 1989, the ILO adopted Convention 169, which revises the text of an earlier ILO Convention (No 107). Convention 107 concerns the protection and integration of indigenous and tribal populations in independent countries, and has not been ratified by many ILO member states because it contains some outdated philosophies expressed in paternalistic terms.

The Australian Government has played an active role in the revision process, and was represented at the 1986 Meeting of Experts as well as the two recent International Labour Conferences at which the revision was discussed and eventually adopted.

The Australian Government supports the revised Convention, which acknowledges the fundamental rights of indigenous and tribal peoples to retain their identity and traditional lifestyles and to make their own choices about their future. These principles are consistent with the Australian Government's own moves to provide Aboriginal and Torres Strait Islander people with greater autonomy and decision-making powers within the existing constitutional framework. The revised Convention is considered to be capable of ratification by a majority of ILO Member States. The existing Convention 107 remains the only international instrument that specifically aims to preserve the rights of all indigenous and tribal populations until such time as Convention 169 is ratified by ILO Member States.

In discussions on the text of the revised Convention, the Australian Government accepted the use of the term "peoples" on the understanding that this did not imply recognition of any rights which are applicable under other international instruments, such as the implication of political separation from the State and absolute independence in determining economic, social and cultural programs and structures.

The Australian Government also accepted the use of the term "land" in connection with the establishment of legal rights, and "territories" in describing a physical space or in discussion of the environment as a whole or the relation of indigenous people to the area they occupy. "Territory" was considered inappropriate in Australia in connection with areas over which indigenous people retain traditional associations but do not currently hold any form of legal title.

The final step to be taken, in the ILO context, is for Australia to ratify Convention 169. This will involve State/Territory government acceptance of, and compliance with, the provisions of the Convention. The Australian Government will shortly commence a consultation process with State/Territory Governments with the objective of obtaining agreement to Australia ratifying Convention 169.

Working Group on Indigenous Populations (WGIP)

In 1982, the United Nations established the WGIP for the purpose of, among other things, "the evolution of standards concerning the rights of indigenous populations".

In recent sessions, the WGIP has been working on the proclamation of a Declaration of Indigenous Rights. It should be noted that a declaration may include goals, objectives and statements which a convention cannot contain. On the other hand, a Convention is an international instrument which, unlike declarations, is legally binding on ratifying states.

The Australian Government has supported the work of the WGIP. In particular, Australia has encouraged the WGIP to concentrate on its standard-setting mandate. In practical terms, the Australian Government has contributed $30,000 towards the Voluntary Fund for Indigenous Populations, established to widen the participation of indigenous peoples' representatives from countries where funds are not available for this purpose.

Australia has been represented at all WGIP sessions since its establishment in 1982. The importance placed by the Australian Government on the WGIP's contribution is reflected by the fact that recent observer delegations have been led by the incumbent Minister for Aboriginal Affairs (1984) and the incumbent Secretary of the Department of Aboriginal Affairs (1985, 1988 and 1989).

A draft Declaration was circulated to member states prior to the WGIP's 1989 Session. The Australian Government accepted as many of the principles in the draft as was compatible with national law and Government policy. Detailed positive and constructive comments were provided to the WGIP Secretariat prior to the 1989 Session. The limited response from other member states on the draft Declaration was disappointing to the Australian Government.

Whilst most principles in the draft Declaration are substantially consistent with the existing legislation or policy, some difficulties still exist in relation to issues such as land rights and natural resources, and self-determination.

Most of these draft principles were also discussed at length in the context of the revision of ILO Convention 107. Whilst the Australian Government supports the general direction of the draft Declaration, the wording in some clauses raises problems, particularly the extent to which the following concepts might be expected to apply:

• use of indigenous languages;
• education in indigenous languages;
• collective and individual ownership, possession and use of land or resources traditionally occupied or used by indigenous people;
• recognition of indigenous land tenure systems;
• indigenous ownership and control of resources;
• land claim processes or compensation for lost land;
• indigenous autonomy;
• obligation of states to facilitate crossborder contact.

The Australian Government will continue to support the WGIP in its endeavours to set international standards for the protection of the rights of indigenous people.