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by Irene Watson
The planning for the 1993 International Year will be guided and directed by the United Nations. The theme for 1993 is: 'Indigenous People - A New Partnership'. On first hearing this, it was like a subliminal flash to a scenario in Australia, that is, the Council for Aboriginal Reconciliation (the CAR).
The concept of partnership and reconciliation with regard to the relationship between indigenous and non-indigenous people is inappropriate and out of context both historically and politically. For example, the CAR, by its nature, implies that at some stage in the past the Aboriginal and non-Aboriginal people had a relationship with one another, that this relationship has deteriorated and that the parties are now in need of being reconciled.
Aboriginal people in Australia have resisted the idea of reconciliation as being vague, ambiguous and ultimately, meaningless. Aboriginal resistance has been demonstrated through the re-establishment of the Aboriginal Tent Embassy (in August 1991) on the lawns of the old Parliament House. One of the grounds for resistance is that Aboriginal and non-Aboriginal people, in a legal sense, have not entered into a relationship that can be reconciled. The non-recognition of Aboriginal people has until very recently been based upon the doctrine of terra nullius and is evidenced by wide-scale dispossession and social dislocation - the result of policies of genocide clearly indicating that no relationship in the past or the present has been entered into between the Aboriginal and non-Aboriginal people of Australia.
What are we left to reconcile, with non-recognition, a continuing colonial relationship with the federal and state governments and our own demise and genocide?
The UN theme for the International Year for Indigenous People, 'a new partnership', implies that in the past we had entered into an agreed partnership and now it was time to amend the old one and start afresh.
In the past there was no partnership agreements or arrangements between indigenous and non-indigenous people of Australia. The relationship, if you can describe it in that sense, was between the colonizer and the colonized - the oppressor and the oppressed. Therefore, the notion of a new partnership is false and misleading.
To continue the debate about the rights of indigenous peoples with merely the rhetoric of 'reconciliation' and a 'new partnership', combined with the international community's refusal to recognize the international law status of indigenous people, will fail to achieve change. And it is clear from the United States' role in the celebrations of the coming of Columbus that there is a considerable distance for us yet to travel before we achieve equitable human rights standards.
The celebrations of the coming of Columbus are support for European racial, cultural and spiritual superiority. They reflect the old world era and the time when the (supposed) 'old partnership' was formed. In Australia, the celebration of invasion day - the 26th of January - celebrates the onslaught of the Europeanisation of this country.
Clearly, if Australia, the USA and the UN General Assembly were serious in their endeavour to improve the human rights standards of indigenous people then they would desist in their celebration of the theft of indigenous peoples' land. Professor Glen Morriss explains how the failure to act against this form of racism has caused (and still causes) widespread destruction and community violence:
"The use of a state apparatus for the promotion of national holidays, festivals, the construction of monuments, or other acts that serve to celebrate, either explicitly, or implicitly, the genocide and colonization of indigenous people is tantamount to the promotion of race hate and racism against indigenous peoples. Such activity is proscribed by several international instruments, and is recognized as promoting intolerance and discrimination ... When an ideology that elevates to national hero status the architect of indigenous genocide, it infests the fabric of society. School children, from the time that they can reason, are inculcated with the notion that theft equals righteousness, colonialism equals liberation, that indigenous peoples were and are savages, and that Euro-American superiority has been vindicated through the colonialism of the western hemisphere. This holiday [celebration of the coming of Columbus) promotes the idea that indigenous peoples are inferior, and consequently, promotes racial intolerance, or worse, it promotes and justifies deliberate policies of indigenous dispossession and destruction - such as those that litter the entire political and legal landscape of the United States."[1]
How will Australians respond to the Year for Indigenous Peoples, on 26 January 1993? Meanwhile, the UN Technical Committee for the International Year for Indigenous Peoples attempts to raise finance for public relations activities - attempts thwarted by the failure of states to contribute to the fund.
The opening of the Year for Indigenous People will be marked by a proclamation at the formal meeting of the General Assembly at its 47th session on 10 December 1992 - this is also International Human Rights Day. The opening will be in two parts. In the first part the formal plenary meeting for the year will be declared, however at this meeting the indigenous representatives will not be able to make an intervention. This is in accordance with the rules of the UN General Assembly which allow only representatives of member states to speak - the indigenous nations are not member states of the UN. The second part of the meeting will be opened by the co-ordinator of the International Year and at this point the indigenous speakers are 'allowed' to make statements. The perception of indigenous peoples as subjects of international law will not be realized by the preclusion of indigenous speakers from the official General Assembly forum.
The UN Technical Committee describes the purpose of the year as being to strengthen international cooperation for solving problems of indigenous people and to raise public awareness of indigenous cultures through special international and national activities. While the ideals of cooperation and improved awareness are
commendable goals, they will remain unattainable whilst states continue to condone colonial practices and participate in activities that continue to deny indigenous peoples human rights.
The UN acknowledged the problems of indigenous people in 1949 through the establishment of a sub-commission to study the conditions of indigenous Americans. However, opposition from the US Government terminated both the study and the sub-commission. In 1957, the International Labour Organization (ILO) adopted Convention 107 obligating states to develop a plan for the integration of indigenous peoples. The revised ILO 169 Convention however, remains fundamentally assimilationist and of little assistance to indigenous survival.
Chapter 11 of the UN Charter combined with Article 73(e) of the Charter, could provide a basis for monitoring human rights abuses against indigenous people, through the requirement to submit an annual report on economic, social, and educational conditions. However, the opportunity for indigenous people to use this process was prevented by the UN General Assembly.[2] The reporting requirements only apply to territories geographically separate and culturally or ethnically distinct from the administering country. Indigenous people in the member nations of the UN are not protected by Chapter 11 requirements, but are subject to the domestic law of the administering states. If the UN is serious about improving indigenous peoples' human rights, they will desist from discriminatory practices that prevent indigenous peoples' access to UN processes.
In 1971, the UN Non-Government Organizations (NGO) conference on Discrimination Against Indigenous Populations, produced a declaration of principles for indigenous nations, calling for recognition of indigenous people as being proper subjects of international law and to be accorded such degree of independence as they may desire in accordance with international law. At a later NCO conference in 1981, Indigenous Peoples and the Land, the 1977 declaration was adopted as setting the initial standards for indigenous people. Following these conferences, the Sub-Commission on Prevention of Discrimination and Protection of Minorities, issued a draft resolution to the Human Rights Commission of the Economic and Social Council to establish the Working Group on Indigenous People (WGIP) in 1982. The WGIP was vested with the mandate to develop standards regarding the rights of indigenous people and to review developments in indigenous communities.
The WGIP is at the bottom of the U.N. hierarchy, and as a result their work on standard setting and the development of the Declaration of Indigenous People must be approved by each step leading to the UN General Assembly. When the Declaration leaves the WGIP it passes on to the Sub-Commission, which is composed of 35 human rights experts who may rewrite or revise the Declaration before granting its approval. The Sub-Commission then submits the Declaration to the Human Rights Commission which also has the authority to amend the document, as does UNESCO and finally the UN General Assembly. It will take time for the Declaration to be presented to the General Assembly and it is feared that the final Declaration may not resemble the Declaration adopted by the WGIP, because during the process the rights of indigenous people may be reduced in order to gain the approval of individual governments.
The drafting process has been difficult, especially with regard to obtaining universal agreement as to the terms to be included in the Declaration. For example, the definition of 'indigenous people' presents problems. The Cabo Report[3] refers to indigenous people as a people who have a history that predates the colonial society and consider themselves distinct from the culture that now dominates the territory. However, indigenous people have preferred a definition that includes group characteristics, that is, a people who hold themselves out as members of specific groups and are accepted by the population as a member of those groups.
In 1984, the focus of the WGIP was to develop minimum human rights standards that would apply to indigenous people and these standards would by adopted by the UN General Assembly to become customary international law. We may at this stage ask why existing human rights laws are inadequate to protect indigenous people? It is because human rights laws protect the individual and not the group or the group's relationship to the natural world. Indigenous peoples' rights are collective, and interdependent upon the natural environment. For example, in most instances, payment of compensation for land seizures would be inadequate, because without the land base, together with the spiritual relationship to the land, the group's overall survival is threatened.
At the 1988 6th session, the draft Declaration of Indigenous Peoples referred to the guarantee to indigenous peoples, of all fundamental rights and freedoms recognized in existing international human rights instruments. It also referred to collective rights to cultural development, traditionally occupied lands, maintenance of traditional subsistence economies and autonomy. It further recognized indigenous people as subjects of international law, particularly with respect to international human rights review and complaints mechanisms.
The Declaration represents one of the most significant efforts, by an international standard-setting body, to specify the nature and content of collective group rights under evolving notions of international human rights law. However, some of the states have resisted the collective group nature of claims to human rights protection, preferring to support human rights standards already in existence.
The draft preamble to the Declaration has, in the past, included support for the right to self-determination of indigenous people. And it is indigenous peoples' right to self-determination that has become the most debated issue between indigenous nations and UN member states who have consistently rejected the idea. For example, the Australian Government, in its intervention to the WGIP on the right to self-determination, said the following:
"If self determination in general means that each people has the option of full independence and forming their own state, it will be very difficult for states to accept the application of that right to many groups."[4]
The Australian Government cited the Aboriginal Torres Strait Islander Commission (ATSIC) as being a model initiative in indigenous self-determination. However, in reality, ATSIC performs mainly as an arm of the Federal Government, and the term 'self-determination' in the original ATSIC legislation was ultimately replaced with 'self-management'.
The following statement by indigenous representative to the WGIP, Hayden Burgess, provides an indigenous perspective on the issue of self-determination:
"How does one define the 'self' in addressing the question of 'self' determination. Is the 'self to be along the lines of the colonizer's racial term? ... And perhaps most important ... who decides? For many indigenous people caught in the predicament of colonization, we must ask ourselves, should a thief sit in judgement of himself; how can we go to the colonizer to point in his face the accusation of colonization, and in the next breath ask him to judge the accusation."[5]
When the Sub-Commission passed the recommendation that the General Assembly declare 1993 the International Year for Indigenous People, it was understood that by creating a greater awareness of the indigenous situation and nature of issues affecting indigenous peoples that the Declaration may receive universal support. However, the concerns and fears of indigenous people remain; there is the likelihood that the Declaration will be substantially amended when it leaves the WGIP, and there is doubt as to whether states will be prepared to implement domestically, rights referred to in the Declaration.
In any event, whatever the outcome internationally, fundamentally the work for indigenous people will continue, at both domestic and international levels. Reflecting upon what strategies indigenous people should embark upon in pursuit of cultural survival, Professor Williams states:
"A major challenge confronting indigenous peoples, therefore as they seek to extend international legal recognition and protection of the collective group rights necessary for their survival is to deprive the state resistance of its strenuously asserted legitimating foundation in a rule of law. That rule of law, of course, is maintained by the doctrine of discovery which at its medievally derived and racist foundation is fundamentally at odds with the universal principles of the equality and human dignity of all peoples reflected in contemporary human rights laws and standards. This first must be challenged domestically and supported internationally if we are to believe there will be a viable future for the indigenous people."[6]
The forums for improving the human rights standards and the recognition of indigenous people as subjects of international law, clearly, are at both international and domestic levels of law and government. Improved human rights of indigenous people, by necessity, will involve the exposure of racism and the extent to which racism enshrines itself in our legal, political and economic institutions.
[1] 1. Morriss, Professor Glen, Intervention to the U.N. Working Group on Indigenous Peoples, July 1992.
[2] U.N. General Assembly 1960, resolution 1541, supported and lobbied for by the Latin American countries.
[3] Cabo, J., Studying the Problem of Discrimination Against Indigenous Populations at I U.N. Sales, No. E 86 X1V3,1987.
[4] Australian Government, Intervention to the U.N. Working Group on Indigenous Peoples, July 1992.
[5] Burgess, Hayden, Pacific Asia Council for Indigenous People, Intervention on self-determination to the U.N. Working Group on Indigenous Peoples, July 1992.
[6] Williams, Professor R., The American Indian in Western Legal Thought, Oxford University Press, 1990, p.333.
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