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Nettheim, Garth --- "Book Review - Indigenous Human Rights" [2004] IndigLawB 14; (2004) 5(30) Indigenous Law Bulletin 6


Book Review – Indigenous Human Rights

Sam Garkawe, Loretta Kelly and Warwick Fisher (eds)

Sydney Institute of Criminology Monograph Series No. 14

Sydney, 2001

Reviewed by Professor Garth Nettheim

In February 2000 the School of Law at Southern Cross University held the Australian Indigenous Human Rights Conference at Byron Bay. This volume presents 13 papers from that conference by a notable range of authors from Australia and overseas, Indigenous and non-Indigenous. It is preceded by a characteristically insightful Introduction by Professor Larissa Behrendt.

In the first paper, “The Legitimacy of Special Measures”, Dr Bill Jonas and Margaret Donaldson from HREOC emphasise the importance of winning public understanding that, for Indigenous people, formal equality of treatment is inadequate and that true equality requires substantive equality in terms of outcomes.

Indigenous lawyer Irene Watson presents “One Indigenous Perspective on Human Rights”. She considers that for Indigenous people to accept discussion in terms of “rights” is to take on a colonial construct which diminishes the reality of “Nunga views on relationships to land, law and peoples . . .” (23). She sees the asserted goal of equality as assimilationist: “But I have never wanted to be the same. It is difference, and the right to be different, that is central to the idea of an Indigenous struggle...” (35).

Chris Cunneen and Terry Libesman discuss “Cultural Rights, Human Rights and the Contemporary Removal of Aboriginal and Torres Strait Islander Children from their Families”. The paper is based on an analysis of NSW Department of Community Services files of Indigenous children removed from their families in 1996-97. “The intergenerational impact of past separations, together with poor socioeconomic conditions in communities, systemic racism and cultural difference between Indigenous people and the dominant society continue to produce the conditions which underlie contemporary removals” (43).

Pam Ditton’s paper presents a different study: “’Dry ‘Em Out’ or ‘Lock ‘Em Up’: Contrastin Approaches to Law and Order in Tennant Creek”. She tells how, in the face of increasing drunkenness and street violence, Julalikari Council and other Aboriginal organisations proposed that the NT Liquor Commission reduce the availability of alcohol in Tennant Creek. The human rights arguments would have supported alcohol restrictions sought by the community as a ‘special measure’ applicable to their own members. However Julalikari wanted restrictions to apply to Aborigines and non-Aborigines alike. These alcohol restrictions have since been taken as a model in other towns.

Terri Janke’s contribution is entitled “Asserting Indigenous Cultural and Intellectual Property Rights”. Recognition of such rights, she argues, “relate to cultural survival, cultural expression and the ability of Indigenous peoples . . . to retain control over the maintenance and development of their cultures” (86)

. She discusses some of the findings and recommendations of the important report she wrote in 1999, Our Culture: Our Future. She notes how Australian law falls short of providing adequate protection, and outlines proposals for specific legislation and policy.

S. James Anaya is a distinguished Native American lawyer and professor. He spoke on “the Influence of Indigenous Peoples on the Development of International Law”, focussing on four specific areas in which they have contributed in fundamental ways that go beyond the specific context of Indigenous rights. He concludes that, through such international advocacy, Indigenous peoples “are helping to bring about change in the international legal order” (114).

Maori lawyer Nin Tomas’ topic is “Locating Human Rights in the South pacific: A Korero about Human Rights”. She, like Irene Watson, is concerned that human rights pay too little respect for the differing approaches of Indigenous peoples, and particularly Indigenous concern for collective rights. And within national systems, landmark court decisions that seem finally to recognise Indigenous rights often deliver much less.

A more specific topic is discussed by US tribal court judge, Mary Jo B. Hunter: “The Indian Child Welfare Act, Love Has Little to Do With It”. She questions whether, as sometimes claimed, the 1978 Act can properly be described as supporting Indian culture. It was enacted in response to the alarming rate of removals of Indian children from their homes. Priority is given to tribal court jurisdiction as against State courts in such cases, and certain placement preferences are listed for State courts for a child who is to be removed from home. (Similar placement preferences have been adopted in some Australian jurisdictions). “Yet, despite such protections, statistically, the numbers of Indian children who are removed from their homes has not decreased dramatically since the inception of the ICWA” (152).

Joern Berglund Nielsen, from Greenland, discusses “Indigenous Rights to Self-Government and Self-Determination: An Inuit Arctic Perspective”. He argues that “Indigenous self-determination has natural, territorial and, most importantly, cultural, as well as political and economic preconditions” (158). Inuit live in four nations – Far East Russia, Greenland as part of Denmark, Alaska and Canada. In the last three of these there are examples of “Indigenous self-government by way of public government” (i.e., government not confined to Inuit) and he considers the extent, and the limitations, to the self-government of each.

Elizabeth Evatt’s paper marks a shift from principles to processes. It is entitled “Realising Human Rights: Utilising UN Mechanisms” and reflects her long experience as member of two of the key UN treaty committees. She relates her discussion of the six treaty committees’ concern with Indigenous peoples particularly to the Australian situation. They have had critical comments to offer on Australia’s periodic reports and four of the six had done so during 2000. She explains how the committees operate, including the scope for input by non-government organisations (NGOs) and the opportunities under some of the treaties for individual complaints. She also refers to the committees’ interpretations of treaty obligations in regard to Indigenous peoples through General Comments.

Following logically from Elizabeth Evatt’s paper is Bill Barker’s “Getting Government to Listen”. He emphasises that answers to problems need to be found at national level but argues that skilful use of international human rights procedures can provide useful leverage on national governments. Realistically, he notes the changed politics since the first complaint from Australia under the 1st Optional Protocol to the ICCPR (the Toonen case) ultimately produced legislative responses at the national level. He also notes that Australia had “started to address the serious backlogs that had developed in the submission of its reports to the various committees... However, this has been at the cost of a serious deterioration in the quality of reporting. In my view, some of the recent reports to the treaty bodies verge on the offensive in their misrepresentation of the situation of Indigenous people in this country” (220). He also stresses the importance of NGOs providing alternative reports to the treaty committees and of effective Indigenous representation at relevant UN meetings, such as those of the Working Group on Indigenous Populations.

Paul Omojo Omaji’s paper is entitled “The Real Crime of the State and Indigenous Peoples’ Human Rights”. He discusses the history of conquest, dispossession, killings, and other fundamental violations of Indigenous human rights – particularly the removal of children from Aboriginal families – and argues passionately that such actions on behalf of the State should be regarded as criminal.

The final paper, by Peter Yu, is called “Unfinished Business – National Responsibilities and Local Actions”. His concern, in 2000, was to try to ensure some outcome from the reconciliation process after the Council for Aboriginal Reconciliation went out of existence at the end of the year. He referred particularly to Patrick Dodson’s proposals, endorsed by a Summit of Indigenous leaders, for a national framework agreement providing a legislative basis for the identification and resolution of outstanding issues.

He adds a call to address the socio-economic disadvantage experienced in Aboriginal communities through partnerships with non-Indigenous people at a regional level. He endorses Noel Pearson’s call for such economic empowerment in Cape York and outlines similar proposals for the Kimberley. He spells out in detail how a revised and effective system of regional governance might operate.

Overall, the papers in this volume, coming as they do from a range of perspectives, represent a valuable account of human rights issues of concern to Indigenous peoples both here and abroad.

Garth Nettheim is an Emeritus Professor of Law at the University of New South Wales.


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