Indigenous rights

Brian Walters, 7 August 2006

Over 20 years ago, anthropologists in the Northern Territory accompanied local indigenous people when they went fishing. Drifting well out to sea, with the shore only visible as featureless mangrove swamp on the horizon, they noticed the canoeist suddenly move the boat. When asked why, he replied that this was “other man’s country”.

This happened repeatedly, and in the end, the anthropologists began mapping these boundaries. When they compared these boundaries to a map of the sea bed, in all cases, they found that the boundaries corresponded with underwater features – ridges or valleys often as much as 90 metres underwater. The local indigenous people could also pinpoint sacred sites far underwater – places that had not been dry land for over 10,000 years.

The conclusion to which the anthropologists were compelled was breathtaking: this people had retained a cultural memory of the ice age geography of their lands.

A few years ago a friend of mine was staying with the Pitjanjatjara people when two elders returned to their country after a visit to Melbourne. It was their first visit to a big city of any kind.

My friend expected tales of freeways and skyscrapers and aeroplanes – but these things made almost no impression on the elders. Instead, what made an overwhelming impression on them, and the one thing they talked about was the number of unrelated people in Melbourne. “There are a lot of lonely people in that big city.”

We whitefellas have an immense amount to learn from indigenous culture, and we do well to have the humility to appreciate that indigenous people don’t necessarily want to be like us.

Indigenous policy in Australia represents 200 years of political failure. We have lurched from segregation, to assimilation, then integration, then ASTSIC and now “mainstreaming”.

It is tempting to despair, but the problems of the relations between indigenous Australians and white Australians are human-created problems, and they are capable of solution by humans.

For years we justly criticised the apartheid system in South Africa. We said that the black people there should be given a vote, and boasted that Aboriginal Australians had the vote.

But with Aboriginal Australians making up a tiny minority of our population, it cost us nothing to give them the vote. We whitefellas will continue to control things because our majoritarian system means that whoever gets the numbers can dictate government policy.

The result is that even though we give Aboriginal Australians the vote, we have nevertheless, in a more profound way, disenfranchised them.

We are not the only nation in the world to confront these difficulties. These are issues which have plagued the post-colonial world, and many good minds have given thought to the way forward.

The US has long recognised the continuing sovereignty of Indian Nations, subject only to Congress. There are several treaties in force.

Canada is still negotiating treaties with the first nations – the primary purpose of those treaties being to resolve issues of land and resources.

We have not done this. And you may be surprised to know our Constitution contains some alarming provisions, like s 25:
For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of the race resident in that State shall not be counted.
Recent calls for an end to cultural sensitivities in sentencing of Aboriginal offenders should be seen for what they are – calls for longer jail terms for indigenous peoples. It is as if we have learnt none of the lessons from the Aboriginal Deaths in Custody Royal Commission.

I want to suggest that one area which could give us assistance in moving forward will be in the great human rights principles recognised by the United Nations.

Article 1 of the United Nations Charter sets out the purposes of that great body.
The Purposes of the United Nations are:
1. To maintain international peace and security, …
2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

The International Covenant on Civil and Political Rights and The International Covenant on Economic, Social and Cultural Rights share a common article 1:

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

This right to self-determination has been given the most prominent place in these great human rights instruments – to all of which Australia is a party.

The UN Office of the High Commissioner for Human Rights has provided a general comment (ie an authoritative pronouncement) on the right to self-determination:

“The right of self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of the individual human rights and the promotion and strengthening of those rights. It is for that reason that States set forth the right of self-determination in a provision of positive law in both Covenants and placed this provision as article 1 apart from and before all of the other rights in the two Covenants.” (General Comment No 12)

There is, no doubt, room for debate on the topic of self-determination of peoples. What is a “people”? Should self-determination be accorded to the Australian Aboriginal people as a whole, or should it be accorded to each language and cultural group within that group? Or is this a false alternative? And what precisely is meant by self-determination anyway?

The Committee for the Elimination of all forms of Racial Discrimination has said of this right:
Governments should be sensitive towards the rights of persons of ethnic groups particularly their right to lead lives of dignity, to preserve their culture, to share equitably in the fruits of national growth, and to play their part in the government of the country of which its members are citizens, where appropriate, with the right to engage in such activities which are particularly relevant to the preservation of the identity of such person or groups

Self-determination is a complex right entailing an internal and an external form. We can think of it as a sliding scale of different levels of entitlement to political emancipation, constituting various forms of internal self-determination (there are countless post-colonial examples) up to the apex of the right – the right to external self-determination - as with the separation of Slovakia from the Czech Republic.

The important point here is that, despite scare-mongering by our political leaders, self-determination does not require political dismemberment of a nation.

In relation to internal self-determination, the Human Rights Committee has emphasized that “all peoples must be able to freely dispose of their natural wealth and resources, and that they may not be deprived of their own means of subsistence”. In order to be able to exercise the right to self-determination, a community must have adequate resources to do so.

The Committee has also said that extinction of inherent aboriginal rights is incompatible with Article 1 of the ICCPR.

In relation to the Sami people of Sweden, the HRC has held:
The committee is concerned at the limited extent to which the Sami Parliament can have a significant role in the decision-making process on issues affecting the traditional lands and economic activities of the indigenous Sami peoples, such as projects in the fields of hydroelectricity, mining and forestry, as well as the privatization of that land.

One of the key drivers against full recognition of aboriginal rights is the fact that those who would exploit mineral and pastoral wealth see the prior claims of indigenous landowners as a threat to their profits. But for Australia as a whole, there is nothing to show that retention of control by traditional owners will be harmful in the long term.

The United Nations is presently negotiating a Declaration on the Rights of Indigenous Peoples.

Article 3 of the draft provides:
Indigenous people have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development;

There are three countries in the world which have objected to that Article. None of those countries have the support of their indigenous communities for that objection. They are New Zealand, the United States and Australia.

Here is our government, pronouncing on the rights of indigenous peoples in international fora, without any involvement or authorization from our own indigenous peoples to do so.

That there is a right to self-determination of our indigenous peoples, no one denies. But our government wants to tell the indigenous people what their self-determination means.

White people live in this land now. I have not heard the indigenous people saying we may not do so. It is our home too.

If we are to be complete as a people we must not only celebrate and own the great things in our past but we must also acknowledge and take responsibility for the bad things – the massacres, the exploitation, the stolen generation.

Lest we legitimize “might is right” and leave a people living amongst us whose rights to self-determination we do not, in a practical sense, acknowledge, and who are disenfranchised, is there not a case for a compact, an agreement, a treaty – or several - which recognizes past injustices, acknowledges our respect for human dignity, and our determination to share resources equitably, and sets out a framework for respecting our mutual rights well into the future?

Our children and grandchildren deserve no less of us.