International Day of the World’s Indigenous Peoples – Francesca Dominello

This article is part of a series posted by the ILA Reporter to mark International Day of the World’s Indigenous Peoples.

On 23 December 1994, the United Nations General Assembly in its resolution 49/214 declared that the International Day of the World’s Indigenous People shall be observed on 9 August every year. The date commemorates the day, in 1982, of the first meeting of the UN Working Group on Indigenous Populations.

The theme for this year is “Indigenous peoples’ migration and movement” in recognition of Indigenous peoples’ continuing loss of lands, territories and resources due to development and other pressures. The unfortunate truth is that Indigenous peoples around the world continue to be forced to leave their homelands whether because of conflict, persecution and climate change effects to find better opportunities elsewhere. With migration and forced displacement, Indigenous peoples risk facing further alienation from their lands and customs and further disadvantage and discrimination as they try to create new lives for themselves away from their homelands. The issues facing the world’s Indigenous peoples are vast and complex and would require significant investment of time and resources for there to be any meaningful improvement to their lives. In that regard, the commemoration of International Indigenous Peoples’ Day might appear to be merely a token gesture when compared to the amount of work needed to make a difference. However, it is also true that such an event provides an opportunity for the international community to reflect on the challenges facing Indigenous peoples and explore ways forward to ensure Indigenous peoples’ laws and customs are protected and their rights are upheld whether they are living on or outside their traditional territories.

In Australia, the celebration of International Indigenous Peoples Day represents a salutary reminder of the ongoing history of colonisation as non-Indigenous peoples continue to live and work on the stolen lands of the original Indigenous inhabitants. The dispossession of their lands was without their consent and in violation of their inherent right to sovereignty. This remains the case even today, notwithstanding Australia’s endorsement of the UN Declaration of the Rights of Indigenous Peoples which includes (among others) a provision for their consent to removal from their lands on just and fair terms of compensation, with the option to return where possible (Article 10). While there have been attempts to address the historical facts of dispossession and denial of Indigenous ownership of the land, whether in the form of land rights legislation or the common law recognition of native title, these measures have not benefitted all Indigenous peoples, nor have they fully restored the rights to land of those who have successfully claimed under these regimes.

Of these measures, land rights legislation such as the Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA) gives what appears to be strong protection to Indigenous land rights through provisions which require the consent of Indigenous traditional owners to mining and other development on their lands. By comparison, the Native Title Act 1993 confers a lessor right of consultation about development. Even so, these measures reveal the shortcomings of Australian law to uphold the rights of Indigenous peoples as such attempts are subject to the will of the government of the day. In the case of native title this was obvious when the former Howard government introduced amendments to the Native Title Act in 1998 without the consent of Indigenous peoples and which, among other things, diminished the scope of the right to negotiate as it had been enshrined in the original Act. Subsequently, some of the amendments were criticised by the Country Rapporteur for Australia, Ms Gay McDougall. In her 1999 report on the amendments to the Convention on the Elimination of Racial Discrimination (CERD) Committee, she called on States to recognise and protect Indigenous peoples rights to ‘own, develop, control and use their common lands, territories and resources’ and stressed the importance of ensuring Indigenous peoples ‘have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent’. The Committee ultimately found aspects of the 1998 amendments did not comply with the CERD, but the Howard government refused to accept these findings. Indeed, in 2007, and again without the consent of affected communities, the Howard government amended the ALRA, with the introduction of township leases, in its attempt to breakdown Indigenous communal ownership of land into individual home ownership, a move which has not won the support of the local communities, especially as it has diminished their self-determination at the decision-making stages of granting subleases and making development decisions after a township lease is made.

Australian past and present history is replete with examples of violations of the rights of Indigenous peoples – land dispossession, labour exploitation, the forcible removal of Indigenous children from their families, black deaths in custody, the abolition of ATSIC and the Northern Territory Emergency Response are some of the more well-known examples. These examples also expose the corresponding shortcomings of Australian laws and policies to provide adequate and effective reparations for such human rights violations as required by international law.  This is clearly the case with respect to the Stolen Generations where only a few of the reparations recommended in the Bringing Them Home report have been made and some of the more pressing claims relating to the issues of genocide and payment of compensation remain unresolved. Speaking directly about the forcible removal of Indigenous children from their families in his 2008 ‘Apology to Australia’s Indigenous Peoples’, former Prime Minister Kevin Rudd acknowledged: ‘The uncomfortable truth for us all is that the parliaments of the nation … enacted statutes … that made the forced removal of children on racial grounds fully lawful’. However, no where in the Apology did he identify how Australian law could be changed to guarantee against the repetition of such violations and uphold the rights of Indigenous peoples in future.

Instead the last ten years have been marred by further violations of Indigenous peoples’ rights. With respect to young people alone the number of Indigenous children being removed and placed in out-of-home care has doubled since 2008 leading to calls for the inclusion of contemporary Indigenous child removals as another closing the gap target. Revelations, in 2016, of the shocking violations of the rights of Indigenous youths at the Don Dale Youth Detention Centre in the Northern Territory may have triggered an immediate response from Prime Minister Malcolm Turnbull to establish a royal commission, but its final recommendations did not include the making of reparations to the victims of the abuse or result in criminal charges against the perpetrators of the violence. To date, the handling of the commission’s recommendations has been less than satisfactory with reports that the Commonwealth is yet to commit to provide any funding to support the NT government’s proposed changes to its youth justice system.

Past and present perpetrations of human rights violations against Indigenous peoples exposes the fallacious understanding of Australian government administrators and law-makers that they know what is best for Indigenous peoples. Even when they acknowledge their mistakes they repeatedly fail to deliver on their promises to do better. The closing the gap policy, which Rudd in his Apology claimed would redress the past injustices inflicted on Indigenous peoples, is a recent example of the government’s failure to deliver improved outcomes with respect to Indigenous health, education and employment.

The response of Indigenous peoples throughout the process of colonisation has been to assert their rights whether in relation to basic human rights or specific cultural rights. However, to date, successive governments have managed to sideline their various claims for justice. The most recent has been the Turnbull government’s rejection in 2017 of the Referendum Council’s proposal for a constitutionally enshrined voice in parliament as a mechanism that would empower Indigenous people to have a voice on the laws and policies that affect them. When considered against a history of rights violations and consistent failures of governments to be responsive to the needs of Indigenous peoples it is unsurprising that such a proposal has been put forward. The proposal aligns with the right of self-determination and the requirement for ‘free, prior and informed consent’ to the adoption and implementation of legislative or administrative measures affecting Indigenous peoples as enshrined in the UN Declaration of the Rights of Indigenous Peoples (Articles 3, 4 and 19). Notwithstanding Turnbull’s initial rejection, the Joint Parliamentary Committee on the Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples in its Interim report released on 30 July is considering this very proposal as a viable approach. What the Voice would look like and how it could be enshrined in Australian law are some of the issues yet to be determined. In moving forward with this proposal, it will be important that Indigenous peoples lead the process and that the most disadvantaged community members are not left behind. Considering past history, it will be important that whatever proposal is finally accepted by the Australian peoples is one which ensures that violations of Indigenous rights finally do become a thing of the past and provides adequate and effective measures so that Indigenous peoples can engage with government on an equal footing and uphold their rights in future.

Francesca Dominello is a Lecturer in the Macquarie Law School and teaches and researches in the area of Indigenous Peoples and the Law.