Pritchard, Sarah --- "The International Arena, Indigenous Internationalism and Directions in Indigenous Policy in Australia" [1999] IndigLawB 65; (1999) 4(23) Indigenous Law Bulletin 4

• The International Arena, Indigenous Internationalism And Directions In Indigenous Policy In Australia
• The International Arena
• Indigenous Internationalism
• Overview Of Issue
• Greenland And Canada
• Lessons For Australia: Unfinished Business
• Endnotes

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The International Arena, Indigenous Internationalism and Directions in Indigenous Policy in Australia

By Sarah Pritchard

In recent months, three developments have reinvigorated discussion of the place of Aboriginal and Torres Strait Islander peoples in the Australian polity: first, the launch on 3 June 1999 of the Council for Aboriginal Reconciliation's Draft Declaration for Reconciliation¹; second, the deal reached on 11 August 1999 between the Prime Minister and the Australian Democrats on a proposed preamble for the Constitution containing a paragraph on the rights of Aborigines and Torres Strait Islanders and third, the House of Representatives' belated discussion of an apology to the stolen generations in the week of the inaugural speech of Aboriginal Senator Aden Ridgeway.

This international thematic issue of the Indigenous Law Bulletin provides a reminder that discussion in Australia of the status of indigenous peoples is neither an aberration, nor does it occur in a vacuum. Rather, these developments parallel those in many other countries, and are taking place within a framework of international standards and expectations. The thematic issue also offers an opportunity, mid-way through the United Nations Decade for the World's Indigenous People (1994-2004), to examine progress in making the Decade's theme -'Building New Partnerships'- a reality in the countries which are the subject of contributions.

The International Arena

With the establishment in 1982 of the UN Working Group on Indigenous Populations (WGIP), there was at last an official space for indigenous peoples to discuss their experiences and aspirations, and to articulate appropriate normative responses to their unique historical experiences and world-views. In the WGIP discourses on self-determination, land and resource rights, treaties and agreements, and other rights have been animated and become dynamic through the active participation of indigenous peoples. As Igorot activist Victoria TauliCorpuz has commented, indigenous peoples have used existing and emerging international law to seek redress and to articulate their concerns.² International advocacy by indigenous peoples has presented fundamental challenges to the normative foundations of world order, influencing the development of international law and the reconfiguration of international bodies.

In recent years, international indigenous movements have developed a more far-reaching critique of the impact of international standards upon indigenous peoples. This has led to a diversification of international advocacy efforts beyond UN human rights bodies to intergovernmental bodies concerned with environment, development and trade.³ The strength and reach of international indigenous advocacy and lobbying suggest that no country can prosper by ignoring or trivialising issues which are the subject of earnest study, debate and emerging consensus in the international arena.

Indigenous Internationalism

The Arctic Peoples Conference held in 1973 in Copenhagen, and attended by Greenlanders, Sami, Inuit, Dene and Metis from Canada's Yukon, Northwest Territories and Nunavut, is frequently described as the beginning of contemporary indigenous internationalism ⁴ In a recent issue of Indigenous Affairs, the quarterly bulletin of the Copenhagen-based International Work Group for Indigenous Affairs (IWGIA), Peter Jull described indigenous internationalism as 'one of the startling achievements of the 20th century'.⁵

Indigenous internationalism emerged at a time when indigenous peoples had few recognised rights and political institutions. In some countries, this remains the case. Increasingly, however, the resurgence of indigenous communities has encountered a more open-minded non-indigenous public, and more enlightened responses from the institutions of the State. In a significant number of countries, constitutional, legal and political change has been proposed, negotiated and implemented, new relationships inaugurated, and communities revitalised and strengthened at the local level. There exists an increasing range of models for rebuilding indigenous societies and (re)constructing relationships with non-Indigenous polities. Indigenous internationalists are able to share precedents, expertise, strategies and insights into their own successes and failures. They offer strength deriving from unique world views and practices, as well as similar historical, political, economic, social, cultural and environmental circumstances.

Overview of issue

The cover features a painting by Xanana Gusmao, the East Timorese leader currently sheltering in the British Embassy in Jakarta⁶ In some respects, the situation of the East Timorese differs from char of the indigenous peoples who have participated in the work of the WGIP. As a former Portuguese colony invaded by Indonesia in 1975, East Timor was recognised by the UN as a non-self-governing territory entitled to an act of self-determination in accordance with relevant UN General Assembly resolutions. However, East Timor is also made up of 32 indigenous groups, the existence of which will require acknowledgment in an independent East Timor. The first contribution to the issue by Kamahl Fadel concerns the struggle for independence of the Sahrawis of Western Sahara, a territory also inscribed in the UN Decolonisation Committee's list of non-self-governing territories. In 1975 the International Court of Justice rejected as contrary to international law the application of the doctrine of terra nallius to the nomadic Sahrawi people. The ICJ's advisory opinion was crucial in the 1992 decision of the High Court of Australia in Mabo v The State of Queensland (No 2) ('Mabo No2') finally to overturn the abhorrent doctrine of - terra nedlius within Australian law. Shaunnagh Dorsett examines the critical process of restitution of land rights begun in South Africa in 1994. Bruce Duthu's contribution, 'Overcoming Jurispathic Law: the Challenge for American Indian Tribal Governments', provides a thoughtful and instructive account of ways in which US Federal Indian law operates 'jurispathically' to obscure and restrict indigenous law and values.

The issue contains a range of contributions concerning indigenous legal issues in Asia and the Pacific. These include an absorbing account by Andrea Tunks of sovereignty issues in AoteoroalNew Zealand; a note by Kaori Tahara on the ground-breaking Nibutani Dam decision in Japan; and the text of a speech given by Likid Magdagasang at the National Commission of Indigenous Peoples in Manila. Contributions concerning indigenous legal developments in Latin America include Jose Aylwitis substantial article on progress and contradictions in the recognition of indigenous peoples' rights in Chile; Juanita Chaves' critique of the recognition of indigenous criminal justice systems in Colombia; and Geralyn Pye's overview of the Law of Indigenous Communities and Peoples' Rights in Mexico's Oaxaca State.

Greenland and Canada

The editors are to be congratulated on the interesting contributions they have solicited for this thematic issue of the ILB. Most of these examine and reflect upon indigenous movements which have attracted little attention in Australia. At the same time, any account of comparative indigenous legal developments would be incomplete without mention of the negotiated political settlements or regional agreements' which have been transforming Greenland and the northern part of Canada, and to the processes of constitutional reform which have recast the constitutional landscape in Canada.

Since 1979, the Inuit in Greenland have exercised home-rule.' In Canada, there have been three rounds of treaty negotiations. These have resulted in the early Indian treaties to 1921; the gradual recognition of Aboriginal title in non-treaty areas and the Northern land claim agreements. Recent rounds of negotiations have resulted in the James Bay Agreement and Northern Quebec Agreements 1976; the Inuvialuit Final Agreement 1984; the failed 1988 Dene and Metis Agreements in Principle; the Nunavut Final Agreement 1993; the Yukon Umbrella Final Agreement 1993; and the Nisga'a Agreement 1996. The Government of Canada pursues a negotiations-based comprehensive land claims policy.⁹

In 1978, processes of constitutional reform were initiated in Canada. A coalition of indigenous organisations negotiated amendments which became law in 1982.¹⁰ Section 35(1) of the Constitution Act 1982 (the 'Constitution Act) provides: 'The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.' Constitutional recognition has meant that Aboriginal and treaty rights can only be altered or terminated by consent or by constitutional'amendment. Laws contravening s 35(1) can be set aside under s 52(1) of the Constitution Act Section 35(2) provides that the reference ins 35(1) to 'treaty rights' includes rights that now exist by way of land claims agreements or may be so acquired. This provision has provided the basis upon which regional agreements negotiated by Aboriginal peoples in Canada have been invested with constitutional status. The 1992 Charlottetown Accord would have entrenched in the Canadian Constitution recognition of the 'inherent right of self-government.' The Accord was rejected when put to a referendum in October 1992. However, the Canadian Government has stated that the rights protected in s 35 include the 'inherent right of self-government':

The Government of Canadas recognition of the inherent right is based on the view that the Aboriginal peoples of Canada have the right to govern themselves in matters that are internal to their own communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to their land and resources.¹¹

Section 25 creates an exemption to the Canadian Charter of Rights and Freedoms, which forms Part I of the Constitution Act:

The guarantee of this Charter of certain rights and freedoms shall not be construed so as to derogate from any Aboriginal, treaty or other rights or freedoms that pertain to the Aboriginal peoples of Canada including ... any rights or freedoms that may be acquired by the Aboriginal peoples of Canada by way of land claims settlement.

The effect of s 25 is to ensure that the prohibition of racial discrimination in s 15 of the Charter is not interpreted as abrogating Aboriginal or treaty rights. It provides a shield against diminishing Aboriginal and treaty rights in situations where non-indigenous people challenge the special status and rights of indigenous people as contrary to equality guarantees.¹²

Lessons for Australia: Unfinished business

As this edition of the ILB seeks to show, comparative studies provide a range of models and strategies for strengthening indigenous communities and pursuing new relationships. There have been failures and successes and there are situations where it is too soon to tell. In some instances, political establishments have resisted change. In others, constitutional landscapes have been entirely recast. Sometimes, the courts have been receptive to assertions of indigenous rights. Other times, legislatures have yielded to the pressure of indigenous advocacy.

What are some of the lessons for Australia? In recent months there has been much discussion of the need for new policy in indigenous affairs policy, new directions and new leadership. In July, the Minister for Aboriginal and Torres Strait Islander Affairs, Senator Herron, told the United Nations Working Group on Indigenous Populations that `until quite recently it had been impossible to have an honest discussion about individual responsibility and the right to welfare.' There was what he called 'the great silence' at the core of much discussion of indigenous policy issues: '[Flew dared speak of some of the fundamental problems nurtured within many indigenous communities themselves.'¹³

In 1992, recognition of the continued existence of native title in Mabo (No 2) opened the way for recognition of the special status of Aboriginal and Torres Strait Islander peoples and broader acceptance of the rights and aspirations arising from their original ownership and continuing dispossession. As part of its response to the decision in Mabo (No 2), the former Government proposed to adopt further measures to address this dispossession, and to advance the cause of social justice for Aboriginal and Torres Strait Islander peoples. Comprehensive 'social justice package' submissions were made by, amongst others, the Aboriginal and Torres Strait Islander Commission, the Aboriginal and Torres Strait Islander Social Justice Commissioner and the Council for Aboriginal Reconciliation.

These submissions were prepared after extensive community consultations and address many issues, including constitutional reform, political representation, reparations and compensation, regional agreements, indigenous selfgovernment, a treaty, cultural and intellectual property, recognition of customary law, and economic development. They were informed by a fundamental shift from welfare and dependence to the recognition of the right of indigenous Australians to the same rights as other Australians (equality rights) and to particular rights by virtue of their dispossession and distinct status as the first peoples ofAustralia (indigenous rights). These submissions have not been taken up by the current Coalition Government, nor does the current National Platform of the Australian Labor Party contain any reference to them.

Recent discussion about the crippling effects of welfare has suggested that this is a condition desired and perpetuated by indigenous communities. Such talk ignores the fact that indigenous peoples have been arguing for greater control over, responsibility for, and independence for their own lives and communities. The 1995 social justice submissions are informed by a desire for real equality with non-indigenous Australians. They express a commitment to a future in which all Australians enjoy their human rights and fundamental freedoms and in which Aboriginal and Torres Strait Islander peoples are able to exercise their distinct rights as indigenous peoples. They contain concrete proposals for establishing and developing foundations for indigenous economic selfsufficiency as an alternative to welfare.

The critical question is whether the attainment of better economic and social outcomes alonewill achieve real equality. Arguments about the desirability of economic self-sufficiency must not be allowed to mask a retreat from recognising rights. Ultimately, policies which do not comprehend the distinct status of indigenous peoples are assimilationist. The stories of the Stolen Generations illustrate the results of such misconceived and failed policies. In all this talk of the need for new policy, we should be wary of processes or outcomes which diminish the rights for which indigenous Australians have struggled so fiercely.

Dr Sarah Pritchard is a Sydney barrister and senior lecturer in the Faculty of Law at the University of New South Wales.

Endnotes

1.	See the recent special issue of the University of New South Wales Law Journal's Forum on 'Requirements of Justice: Legal Perspectives on Reconciliation' (1999) 5 (2) The University of New South Wales Law Journal Forum.

2.	V Tauli-Corpuz, 'Thirty Years of Lobbying and Advocacy by Indigenous Peoples in the International Arena at the United Nations' (1999) Indigenous Affairs, 4, 5. The Igorot are an indigenous people from the mountainous region of north Luzon in the Philippines.
3.	Ibid 6; also S Pritchard and C Heindow-Dolman, (1998) 3 (4) Australian Indigenous Law Reporter 1.

4.	See generally P Jull, "'First World" Indigenous Internationalism after Twenty-five Years' [1998] IndigLawB 15; (1998) 4 (9) Indigenous Law Bulletin 8- I l.

5.	P Jull,'Indigenous Internationalism: What Should We Do Next?' Indigenous Affairs (1999) 12, 12.

6.

The painting is from a series painted while Gusmao was being held as a political prisoner in Cipinang prison in Jakarta, and is reproduced with the permission of the East Timor Relief Association in Australia. See X Gusmao, My Sea of Timor: Poems and Paintings/Mar Mew Poemar e Penitent, (Granito Editores e Livreiros, Portugal, 1999).

7.	[1992] HCA 23; (1991) 175 CLR 1

8.

T Sovndahl Petersen,'The Home Rule Situation in Greenland', in L van der Vlist (ed), Voices of the Earth: Indigenous Peoples, New Partners and the Right to SelfDetennination in Practice (1994) 113-124; M Nuttal, 'Greenland: Emergence of an Inuit Homeland', in Minority Rights Group (id), Polar Peoples: Selfdetermination and Development (1994) 1-28; also Greenland Home Rule Act 1978 (1996) 1 Australian Indigenous Law Reporter 6 1.

9.

P Tennant, 'Strong Promises on Paper: Treaties and Aboriginal Title in Canada', in C Fletcher led), Aboriginal Self-Detennination in Australia (1994) 177-190; B Richardson, D Craig and B Boer, 'Indigenous Peoples and Environmental Management: A Review of Canadian Regional Agreements and their Potential Application to Australia' (1994) 11 EnvironnenalandPlanningLawfomwal320; I Creery, 'The Inuit (Eskimo) of Canada, in Minority Rights Group led), Polar Peoples: Self-determination and Development (1994) 105-146; Department of Indian Affairs and Northern Development, Comprehensive Land Claims Policy (1986); Canadian Royal Commission on Aboriginal Peoples, TwatyMakingin the Spirit of Co-Existence: An Alternative to Fxtinguislnnent (Interim Report 1995), summarised in [1996] AUIndigLawRpr 8; (1996) 1 Australian Indigenous Law Reporter 102; 'Canadian Royal Commission on Aboriginal Peoples, Restructuring the Relationship', in Report of the Royal Commission o,, Aboriginal Peoples (Vol 2 1996); Agreement Between the Inuit of the Ahmaoet Settlement Area and Her Majesty the Queen in right of Canada (1993); P Jull, 'Reconciliation and Northern Terrimrirs, Canadian-style: the Nunavat Process and Product' [1999] IndigLawB 30; (1999) 4 (20) Indigenous Law Bulletin 4; D Sanders, 'The Nisgaa Agreement' (1996) 1 Australian Indigenous Law Reporter 466; M Asch and N Zlotkin, Affirming Aboriginal Title: A New Basis for Comprehensive Claims Negotiations', in M Asch (ed), Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and Respect for Difference (1997) 208230; P Jull, An Aboriginal Northern Territory: Creating Canada's Nuri (Discussion Paper No 9, Australian National University North Australia Research Unit Darwin, 1992); S Venne, 'Understanding Treaty 6: An Indigenous Perspective' in M Asch (ed), Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and Respect for Difference (1997) 73-207; J Henderson, 'Interpreting Sui Generis Treaties' (1997) 36 Alberta Law Review 46; K Coates, Aboriginal Land Claims in Camda: A Regional Perspective (1992).

10.

Canadian Royal Commission on Aboriginal Peoples, Partners in Confederation: Aboriginal Peoples, Self-Government and the Constitution (1993); S Verne,'Treaty Indigenous Peoples and the Charlottetown Accord: The Message in the Breeze' (1993) 4 Constiaetional Forum 43; Aboriginal Self-Govern men: The Government of Cawda's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government. (10 August 1995); 'Canadian Royal Commission on Aboriginal Peoples, Restructuring the Relationship', in Report of the Royal Commission on Aboriginal Peoples Vol 2 (1996); P Macklem, 'Normative Dimensions of an Aboriginal Right to Self-Government' (1995) 21 Queens Law Journal 173; Canadian Royal Commission on Aboriginal Peoples, The Right of Aboriginal Self-Government and the Constitution: A Commentary, (13 February 1992); P Macklem,'Indigenous Peoples and the Canadian Constitution: Lessons for Australia' (1994) 5 Public Law Review 11; J Borrows and L I Reiman, 'The Sui Generis Nature of Aboriginal Rights: Does It Make a Difference?' (1997) 36 Alberta Law Review 9.

11.	Aboriginal Self-Government; The Government of Camda} Approach to implementation of the Inherent Right and the Negotiation of Aboriginal SelfGovernmen (1995).

12.

See discussion in P Hogg and M E Turpel, 'Implementing Aboriginal SelfGovernment: Constitutional and Jurisdictional Issues', in Aboriginal Self- Government: Legal and Constitutional Issues (Papers prepared as part of the Research Program of The Royal Commission on Aboriginal Peoples (1995) 375, 417.

13.	Statement on behalf of the Australian Government at UN WGIP 17th Session, Geneva, 29 July, 1999. The entire speech is available at: <www.arsia.gov.au/ fr_search.html>.