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Dodson, Mick; Pritchard, Sarah --- "Recent Developments in Indigenous Policy: the Abandonment of Self - Determination?" [1998] IndigLawB 70; (1998) 4(15) Indigenous Law Bulletin 4

Recent Developments in Indigenous Policy: The Abandonment of Self-Determination?

By Mick Dodson & Sarah Pritchard

‘We define our rights in terms ofvself-determination. We are not lokking to disember your States and you know it. But we do insist on the right to control our territory, our resources, the organistaion of our soceities, our own decision-making innstitutions, and the maintenance of our own cultures and ways of life.’

Geoff Clarke, National Coalition of Aboriginal Organisations, International Labouur Organisation, Geneva, 1998

During the course of the recent election campaign, the Prime Minister rejected the possibility of a treaty of reconciliation with Indigenous Australians, stating: ‘We are all Australians before anything - one distinctive nation.’[1] Instead, he supports the idea of a document which would simply recognise Indigenous peoples’ prior occupation of the land, their place as part of the Australian community and their right to preserve their culture. In the Prime Minister’s vision of an undivided, united Australian polity, Indigenous Australians are reduced to occupiers, not owners, of their territories; there is no room for Indigenous communities to determine their own futures and control their own development.

During the campaign, the Prime Minister fuelled speculation about plans to gut the Aboriginal and Torres Strait Islander Commission (‘ATSIC’), invoking the mantra of ‘accountability’ and stressing the need for ‘decentralisation’ of Indigenous health, housing and education – this despite the fact that in the Coalition Government’s first term in office, ATSIC was subjected to numerous expensive audits and reviews which revealed little to support claims of waste, mismanagement or misuse of public funds. Both the Deputy Prime Minister and Minister for Aboriginal and Torres Strait Islander Affairs also launched attacks on ATSIC.

The Minister for Aboriginal Affairs again threatened to ‘tighten’ the definition of Aboriginality. This is nothing new to Aboriginal people, whose identities have been defined and redefined in more than sixty-seven definitions imposed upon them over the past two centuries. The Foreign Minister, Mr Downer, confirmed that Australia will urge the United Nations to abandon the term ‘self-determination’ for Indigenous peoples, and replace it with concepts of ‘self-management’ or ‘self-empowerment’. According to the Foreign Minister:

We don’t want to see a separate country created for indigenous Australians. We will ... be arguing ... that it might be better to use the term self-management rather than leaving an impression that we are prepared to have a separate indigenous state. [2]

The Government’s rejection of self-determination signals a radical departure from established Indigenous affairs policy in Australia, where self-determination has been Indigenous affairs policy since 1972. In 1990, the House of Representatives Standing Committee on Aboriginal Affairs defined self-determination to include ‘Aboriginal control over the decision-making process’, as well as ‘control over the ultimate decision about a wide range of matters including political status, and economic, social and cultural development.’ In 1991, the Royal Commission into Aboriginal Deaths in Custody noted that ‘[t]he anger in the demands for self-determination is so strong because the totality of control is so recent, and the effects of it are continuing and remain painful.’ State and Territory Governments endorsed the application of self-determination in their responses to the recommendations of the Royal Commission. The principle of self-determination was also reflected in the National Commitment to Improved Outcomes in the Delivery of Programs and Services for Aboriginal Peoples and Torres Strait Islanders, endorsed by the Council of Australian Governments in 1992.

The Government’s stance on self-determination also sets Australia apart from other countries involved in the development of an international declaration on the rights of Indigenous peoples. Since 1982, Australia has participated in every session of the independent United Nations Working Group on Indigenous Populations (‘WGIP’). The WGIP has developed the Draft Declaration on the Rights of Indigenous Peoples. Indigenous participants in the WGIP’s sessions left little doubt that the integrity of any instrument on Indigenous rights would depend on recognition of Indigenous peoples’ right to self-determination. They maintained that support for Indigenous peoples’ right to self-determination derives from articles 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which affirm the right of ‘all peoples’ to self-determination. In 1993, Chief Ted Moses, Ambassador of the Grand Council of the Crees, stated that:

The Indigenous peoples ask to be accorded the same rights which the United Nations accords to the other peoples of the world. ... We ask simply that the United Nations respect its own instruments, its own standards, and its own principles. We ask that it apply these standards universally and indivisibly.[3]

Former ATSIC Chairperson, Lois O’Donoghue, noted that:

The call for self-determination in the Declaration on the Rights of Indigenous Peoples is not a new or different right that applies to us as Indigenous peoples...Self-determination for the member states of the United Nations has taken many forms. The same will happen, I believe, in the evolution of self-determination for Indigenous peoples. There is not a single future to which we must conform, there are multiple futures. And multiple futures within the same environment. Our experience in Australia reinforces this message. We have ATSIC as an example and we have the Torres Strait Regional Authority. There are presently aspirations for autonomous self-governing States among some of our Indigenous communities.[4]

Different communities and organisations have articulated their desires for greater self-determination in different ways. Some seek self-government within the Australian Federation, hardly a novel concept in Australia; Norfolk Island was granted self-government in 1979 and has powers in matters concerning law and order, taxation, education, immigration, health and social welfare. The Preamble to the Norfolk Island Act 1979 (Cth) states that self-government was granted in recognition of ‘the special relationship of the (Pitcairn) descendants of Norfolk Island and their desire to preserve their traditions and culture.’ The Northern Territory and Australian Capital Territory also enjoy powers of self-government.

Fundamental principles of equality and non-discrimination are at stake in the Government’s decision to jettison self-determination for Indigenous Australians. In 1993, the WGIP acceded to Indigenous calls for recognition of self-determination in a draft declaration. In 1995, a new inter-governmental body was established to consider the WGIP’s draft. The sessions of this new body have witnessed growing support amongst governments for the inclusion of a right of self-determination. In 1996 Bolivia, Chile, Denmark, Fiji, Finland and Peru supported language of self-determination. Canada accepted a right of self-determination for Indigenous peoples ‘which respects the political, constitutional and territorial integrity of democratic states’, noting that:

exercise of the right involves negotiations between states and the various Indigenous peoples within these states to determine the political status of the Indigenous peoples involved, and the means of pursuing their economic, social and cultural development.[5]

In 1997, Norway supported the principle that Indigenous peoples qualify for the right of self-determination in the same way as non-Indigenous peoples. Argentina, Canada, Chile, Finland, Mexico, New Zealand, Switzerland and Venezuela recognised the importance of the right to self-determination, subject to adequate protection of States’ territorial integrity. Bolivia, Colombia, Denmark and Fiji supported the provision on self-determination in the wording proposed in the WGIP’s draft. Many delegations described the exchanges on self-determination as a valuable and significant step towards mutual understanding.

Why then Australia’s new-found hostility to self-determination for Indigenous peoples? In claiming self-determination, few, if any, Indigenous peoples are interested in dismembering existing States. Instead, they are seeking constitutional reform within States so that they can develop their institutions and determine their development in accordance with their own values. ATSIC and the Torres Strait Regional Authority are part of the message of self-determination. It is noteworthy that in Australia not a single Indigenous organisation – not even the self-proclaimed Aboriginal Provisional Government – has expressed a desire for independent statehood. Thus the image of separate Black states is a misleading and mischievous representation of Indigenous Australians’ actual aspirations in relation to self-determination.

Australia was not the only place in the world where first peoples were dispossessed by force and without consent. Around the world, Indigenous peoples are renegotiating their relationships with States, and fundamental processes of constitutional review and reallocation of power are taking place. In Greenland, the Inuit were granted home-rule in 1978. There are now Sami Parliaments in Finland, Norway and Sweden. There have been significant constitutional and legislative developments in many Latin American countries. In Canada, Aboriginal and treaty rights were constitutionally entrenched in 1982. The Canadian Government now recognises the inherent right of Aboriginal self-government and is pursuing a negotiations-based comprehensive land claims policy. In Aoteoroa/New Zealand there are reserved seats for Maori in Parliament and the Waitangi Tribunal investigates claims of infringements of Maori rights under the 1830 Treaty of Waitangi. In 1994, President Clinton confirmed the commitment of the US Government to respect ‘the rights of self-government due the sovereign tribal governments.’

Until recently, Australia regarded self-determination as a still-evolving concept within international law. Australia’s views were described in a Working Paper submitted at the first session of the inter-governmental working group in 1995:

In Australia’s view, self-determination is not a static concept, but rather an evolving right which includes equal rights, the continuing right of peoples to decide how they should be governed, the right of people as individuals to participate fully in the political process (particularly by way of periodic free and fair elections) and the right to distinct peoples within a state to make decisions and administer their own affairs relevant to both indigenous peoples and minorities.[6]

According to the Working Paper, self-determination does not, except in the most exceptional circumstances, equate to a right of secession. With reference to the UN General Assembly’s 1970 Friendly Relations Declaration (Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations), the view of the Department of Foreign Affairs and Trade was that self-determination must be exercised in ways consistent with the territorial integrity of the state, ‘so long as the government of states is representative’. In 1995 it was stated on behalf of Australia:

Self-determination for Australia’s indigenous peoples has been Government policy since 1972. Since 1991, we have made statements in WGIP in favour of the use of the term ‘self-determination’ in the Draft Declaration. We have done so on the basis that the principle of the territorial integrity of states is sufficiently enshrined internationally that a reference to self-determination in the Draft Declaration would not imply a right of secession. In the Australian context, self-determination will be worked out within national boundaries and through the establishment of representative bodies such as the Aboriginal and Torres Strait Islander Commission.[7]

Since the appearance of the Member for Oxley after the February 1996 Federal election, much discussion of Indigenous rights in Australia has been plagued by misunderstanding about the principles of equality and non-discrimination. In June of this year, Ms Hanson described the Draft Declaration as a ‘treacherous sell-out of the Australian people’, claiming that ‘it will tear the heart out of our country and deliver that heart to one of our very smallest minority groups.’ An analysis of international jurisprudence which goes back to the establishment of a special regime for the protection of minorities after the First World War supports a number of very different conclusions in relation to the principle of equality. Firstly, not all differences in treatment are discriminatory; that is, equality does not mean identical treatment. Distinctions are not discriminatory where they pursue a legitimate aim. Moreover, special measures - or affirmative action - are sometimes required to redress inequality and to secure for members of disadvantaged groups full and equal enjoyment of their human rights. Finally, particular regimes of minority rights are consistent with, and sometimes required, if factual or substantive equality is to be achieved. Thus, protection of Indigenous peoples’ distinct rights is also implicit in the concept of equality.

Given the history of relations between Indigenous peoples and colonising States, building new relationships based upon understanding, mutual respect and the recognition of distinct Indigenous rights will take time and require patience. At a time when the rest of the world is moving closer to an understanding and accommodation of the aspirations of Indigenous peoples, Australia’s approach has hardened significantly. At the UN, Australia is no longer seen as a constructive advocate of Indigenous rights. Maverick advocacy of ‘self-empowerment’ and ‘self-management’ — terms without any basis in political theory or international law — is unlikely to reverse the decline in our standing abroad. No country can survive in today’s complex world by trivialising difficult policy issues which are the subject of serious study, debate and decision in the international arena.

Mick Dodson is Director of the Indigenous Law Centre at the University of New South Wales. Dr Sarah Pritchard is a senior lecturer in the Faculty of Law at UNSW. Both have been involved in the development of the UN Draft Declaration on the Rights of Indigenous Peoples.


[1] Televised election debate between the Prime Minister & the leader of the Opposition, 13 September 1998.

[2] M. Forbes, ‘Downer fears phrase will spilt Australia’, The Age, 22 August 1998.

[3] WGIP, 11th ession, 21 July 1993.

[4] WGIP, 11th session, 21 July 1993.

[5] Statement by Canada, Working Group established in accordance with Commission on Human Rights resolution 1995/32, 31 October 1996.

[6] UN Doc E/CN 4/1995/WG 15/2/Add 2, para 8.

[7] Statement on behalf of the Australian delegation, Working Group established in accordance with Commission on Human Rights resolution 1995/32, 31 October 1996.

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