National Strategy to Promote Recognition of Aboriginal and Torres Strait Islander Rights
This national strategy aims to promote recognition, respect and understanding of Aboriginal and Torres Strait Islander peoples rights as citizens and as the first peoples of Australia. This is an early draft of what the final national strategy may look like and continues to be subject to intense discussion and consultation. It is based on the earlier work of the Council and draws on the feedback the Council received through national consultations on the Documents for Reconciliation during 1999. Council recognises that this strategy presents many challenges for the nation but is also aware of its importance to Aboriginal and Torres Strait Islander peoples and to the process of reconciliation. The
Council plans to finalise the content and structure of this national
strategy in its April meeting and will continue to invite feedback on
this strategy until For more information please telephone: Tanya
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by the Documents Committee of the 23 February 2000 National Strategy to Promote Recognition of Aboriginal and Torres Strait Islander Rights Setting the scene The Council for Aboriginal Reconciliation asks individuals, organisations and governments across the nation to make a genuine commitment to implement this national strategy which seeks recognition, respect and understanding for Aboriginal and Torres Strait Islander peoples to enjoy their rights as the first peoples of Australia. Aboriginal and Torres Strait Islander peoples have sought recognition of their rights since colonisation. It needs to be remembered that Australia is the only Commonwealth country which has not signed an official treaty with its Indigenous peoples. Furthermore, the Australian Constitution, the foundational legal document of the nation, does not formally recognise the status of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia. Indeed, the 1992 Mabo decision was the first official recognition that Indigenous people had native title rights to their country before European colonisation and that, in some areas, these rights continue to exist. The 1967 referendum, the 1975 Racial Discrimination Act (Cth), the 1993 Native Title Act (Cth) and the 1999 Aboriginal and Torres Strait Islander Heritage Protection Act (Cth) are other milestones which recognise the general principle that it is sometimes necessary to treat Indigenous peoples differently to enable them to exercise their distinct cultural identities, however, there is still no comprehensive body of legislation that provides recognition or protection of Indigenous rights. Aboriginal and Torres Strait Islander peoples welcome efforts to overcome disadvantages in health, housing, education and employment but stress that the recognition of their distinct rights as the first Australians is just as important. Many individuals and groups, both Indigenous and non-Indigenous, have contributed over many years to improving the enjoyment of rights by Aboriginal and Torres Strait Islander peoples. While there has been progress in some areas, there has also been much disappointment. It is the desire of the Council that this national strategy will provide one of many links in the continuing collective effort to promote recognition of rights for Aboriginal and Torres Strait Islander peoples, giving life to the Council’s vision of "A united Australia that respects this land of ours, values the Aboriginal and Torres Strait Islander heritage, and provides justice and equity for all". In 1999, the Aboriginal and Torres Strait Islander Commission (ATSIC) began work with other Indigenous leaders to develop a Statement of Indigenous Rights (Attachment A) for broad endorsement across Indigenous communities. The Council urges all community leaders to note the importance of this work in future negotiations with Aboriginal and Torres Strait Islander peoples. The Council recognises that there are significant areas of difference within the nation which are yet to be reconciled, particularly in respect to the recognition of Aboriginal and Torres Strait Islander rights. This strategy recommends that the best way forward is through the establishment of an ongoing process in the form of a framework agreement. This framework agreement provides a legislative process of negotiation and consultation to ensure the progressive resolution of outstanding issues. What are rights? Human rights are inherent; they are your birth rights. They are not something which can be given, but they can be withheld, denied or not recognised. The most basic human right is the right to life, and the most important principles that underpin all human rights and their enjoyment are the principles of equality and non-discrimination, and the absolute prohibition of racial discrimination. The Universal Declaration of Human Rights was adopted and proclaimed by the General Assembly of the United Nations in 1948. It sets a common standard of human rights and fundamental freedoms to which all peoples and all nations, everywhere in the world, are entitled, without discrimination. It sets out basic principles such as that all human beings are born free and equal in dignity and rights. Reconciliation and social justice will only be achieved when all Australian citizens enjoy their human rights. Furthermore, all Australians also enjoy equality of rights, benefits and responsibilities as citizens. However, in regard to citizenship rights, most Aboriginal and Torres Strait Islander peoples do not enjoy the same standards of freedom and equality as other Australians. Strategies to improve Indigenous peoples’ access to citizenship rights such as health, education and employment are covered in the National Strategy to Address Aboriginal and Torres Strait Islander Disadvantage and the National Strategy for Economic Independence. So, what are Indigenous rights? In the pursuit of reconciliation, it is important to recognise that Aboriginal and Torres Strait Islander peoples hold unique communal values which derive from their own distinct identities as the first peoples of Australia. Indigenous rights are not superior or better, they are just different from, but equal to, the rights of non-Indigenous people. Proper recognition and protection of the rights of Indigenous peoples will bring honour, enrichment and dignity to the whole nation. The use of the term Indigenous has evolved through international law. Indigenous peoples exist around the world. They are the original people of many countries and are also known as the ‘first peoples’. These peoples are the descendants of, and have an historical continuity with, those peoples, communities and nations which existed on their territories prior to invasion or colonisation. An Indigenous person belongs to Indigenous society through self-identification and through being recognised and accepted by the community as one of its members. Aboriginal and Torres Strait Islander peoples are the Indigenous peoples of Australia. Indigenous peoples should be free from discrimination of any kind and have the right to share in the nation’s land, resources and wealth. Throughout the world, colonisation and dispossession has led most Indigenous peoples to experience diminished human rights and diminished fundamental freedoms. Discrimination has led to loss of lands, cultures and distinct historical identities. Indigenous rights relate to areas such as identity, culture, religion and language, cultural and intellectual property, land, customs, traditions and freedom from discrimination. A Draft Declaration on the Rights of Indigenous Peoples (Attachment B) is currently being considered by the Working Group of the United Nations Commission on Human Rights. It is hoped that a final version of the Declaration will be adopted by the General Assembly before the end of the Decade of the World’s Indigenous Peoples in 2004. Central to the draft Declaration is the right of Indigenous peoples to self-determination. Aboriginal and Torres Strait Islander peoples seek recognition and respect for their distinct identities, cultures, histories, languages and ways of life.
What actions can we take? The Council for Aboriginal Reconciliation has identified five main areas in which to address the recognition of rights for Aboriginal and Torres Strait Islander peoples. Within each of these key areas the Council has identified and grouped together those issues which it regards are priorities for action to promote Aboriginal and Torres Strait Islander rights. The five main areas are:
This strategy presents what some would call practical actions that the nation should put in place in the short-term. It also acknowledges that there are many issues that the nation is not able to agree on. It proposes that the Commonwealth pass legislation to provide for the progressive resolution of outstanding issues to be discussed and agreed on over the longer term. 1. Constitutional and legislative matters Objectives
1(i) Unfinished business In September 1999, the Aboriginal and Torres Strait Islander Commission convened a meeting of Indigenous leaders (Focus 2000 and Beyond Forum) to consider and discuss a range of key issues. The meeting noted that reconciliation will not be achieved under any arbitrary timeframe. The formal reconciliation process provides an opportunity to place on the table things that still need to be negotiated. Therefore, in recognising there are significant areas of discord within the nation which are yet to be reconciled, this strategy recommends that a formal framework agreement is developed to ensure the progressive resolution of these areas of disagreement through consultation and negotiation, conducted with good will and mutual respect. Negotiating these matters will be a long-term process and the Council notes that resources will be needed to ensure equitable Indigenous representation. Many statements of Indigenous aspirations have been drafted over the years. Working from these various sources, ATSIC has developed a draft Statement of Indigenous Rights (Attachment A), which they propose to take to communities as a starting point in the establishment of a framework to negotiate with government. To achieve its greatest level of success, this negotiating process should be protected in legislation and founded upon principles which are agreed to by both government and Aboriginal and Torres Strait Islander peoples. The legislation should assist the negotiation of all outstanding Indigenous rights issues, and a number of matters discussed in the other three National Strategies. New issues may also be identified for negotiation in the future. The framework agreement should seek to address those difficult issues which have remained unresolved for too long. Issues such as prohibition of racial discrimination; equality; recognition of distinct Indigenous identities; self-determination; increased protection of laws, cultures, and languages; economic and social development; education and training; land and resources; resource development; law and justice issues; reparation, compensation and resolution for stolen generations; self-government; constitutional recognition; treaties and agreements. Some possible models for a framework agreement are:
1(ii) Recognition of the status of the first Australians To date, the status of Australia’s Indigenous peoples has not been clearly recognised. Australia has a history steeped in denial of the full story of the colonisation of the nation with respect to its first peoples. Significant as the Mabo decision (1992) was in providing legal recognition of occupancy of Australia prior to colonisation, it does not fulfil the full potential for recognition of the status of the first Australians. This strategy asserts that true recognition of the status of the first Australians cannot be achieved without legal recognition of that status. Undoubtedly this presents many challenges for the nation, particularly given the general lack of understanding of our shared history that exists among many Australians. As well as legal measures, symbolic recognition also plays an important role in demonstrating and protecting the inherent status claimable by Aboriginal and Torres Strait Islander peoples. Symbolic recognition receives further attention in the National Strategy to Sustain the Reconciliation Process.
1(iii) Other legislative proposals Australia has explicit protection in its constitution for only a few distinct rights, such as a right to vote in federal elections, trial by jury, freedom of religion and freedom of interstate trade. A range of other State and Federal legislation, including human rights and anti-discrimination laws, provides some protection for human rights in Australia, but there is no general Bill of Rights here, as there is in many other countries, and the courts are traditionally slow to interpret common law rights and to develop a body of rights-based laws. This strategy proposes steps towards establishing a legislated Bill of Rights for all Australians that will include measures to prohibit racial discrimination and entrench principles of equality and non-discrimination.¹ To further strengthen measures against discrimination, it is also proposed that two existing provisions of the Commonwealth Constitution should be amended. Section 25 is intended to discourage discrimination but recognises the possibility that a State might exclude people from voting on the grounds of race. The Council believes this provision is not appropriate in the Constitution of a nation whose people come from so many different backgrounds. The Council strongly supports removing section 25 from the Constitution to ensure that no Australians can be denied the vote on the grounds of their race. Section 51(26) empowers the Commonwealth to make laws with respect to "the people of any race for whom it is deemed necessary to make special laws". It is possible, however, that in its present form this section could be used to discriminate against persons of a particular race. This has led to proposals that s51(26) should be altered to enable the Commonwealth to legislate only for the benefit of any particular race. By confronting these important constitutional and legislative matters, Australia will take important steps towards reconciliation and will also improve the protection of rights of all citizens. These are matters for a mature nation that is prepared to accept its human rights responsibilities as an independent nation state and as a member of the global community. ¹ The Council notes that many lawyers, academics and members of the judiciary also agree that the time is right to provide specific legal protection for our basic freedoms under a Bill of Rights.
Actions - what needs to be done and who will do it
2. Self-determination Objective: Recognition of the aspirations for self-determination by Aboriginal and Torres Strait Islander peoples For most Australians there is much confusion about the meaning of self-determination and what it means in practice for the first peoples of Australia. For Aboriginal and Torres Strait Islander peoples, however, the concept is central to their aspirations. The first Articles of both the United Nations International Covenant on Civil and Political Rights 1966 (ICCPR) and the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) state: 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. Australia is a party to both these United Nations Covenants, yet Aboriginal and Torres Strait Islander peoples who, as the first peoples of Australia are a distinct peoples, do not comprehensively enjoy these rights. The Aboriginal and Torres Strait Islander Commission (ATSIC) describes self-determination as "the right to take responsibility for setting the course for further change, to specify the agenda for action and to control policy implementation¹" and "the right to decide our own political, economic, social and cultural condition ²". ¹Encyclopedia
of Aboriginal Australia, and ² Encyclopedia of Human Rights For most Aboriginal and Torres Strait Islander peoples, self-determination has never been about separate nation status. Self-determination is about freedom to make choices. In the United Nations, however, it is clear that some countries, including Australia, are concerned about the implications of self-determination and fear that Indigenous peoples may use this right to challenge national unity or sovereignty. These fears usually exist because of a lack of understanding, but they are unfounded as international law specifically rejects interference in the domestic affairs of nation states or in matters which interfere with the existing territorial integrity of nation states. (Bringing Them Home, 1997). Some models of self-determination and empowerment already exist in Australia, for example in the Torres Strait, where regional self-government through local government is well developed. Many Aboriginal and Torres Strait Islander peoples seek greater control over decision-making processes about a wide range of matters affecting their lives and communities. Recognition of the aspirations of Aboriginal and Torres Strait Islander peoples for self-determination and the evolving nature of this particular right remains a key issue of unfinished business for future negotiation. The Council recognises that this is a complex and sensitive issue. Indigenous leaders are urged to work further with their communities towards developing better understanding about self-determination in the wider community and removing barriers which can help ongoing negotiations within a framework agreement. Actions - what needs to be done and who will do it
2(i) Increased representation of Indigenous peoples in government Objective: Improved political representation of Aboriginal and Torres Strait Islander peoples All members of the Aboriginal and Torres Strait Islander Commission are now directly elected by Indigenous peoples and the Chairperson is elected by the Commissioners. But despite this progress there continues to be extremely low participation of Aboriginal and Torres Strait Islander peoples in Commonwealth, State, Territory or local government. Governments make the laws and regulations affecting our day-to-day lives, and the voices and views of Indigenous Australians should be equitably represented. Indigenous peoples never had the opportunity to participate in the nation-building surrounding federation. Neither have they had the opportunity since federation to choose how they might participate in modern governing structures. The Council notes that dedicated seats is one option for increasing representation and that this has proved successful in New Zealand. Before this can be pursued further, however, there is a need for extensive community discussion of the full range of possible options to improve Indigenous political representation. Dedicated seats is one of the issues listed for future negotiation within a framework agreement. The Council urges all political parties to introduce measures that will increase the involvement and representation of Aboriginal and Torres Strait Islander peoples in their parties, and ultimately in the parliaments, and eliminate barriers to participation in party processes. The Council also urges both local governments and Indigenous people to build on recent trends for Aboriginal and Torres Strait Islander people to seek election to local councils and to take an active part in local government. Actions - what needs to be done and who will do it
1 The New South Wales Upper House and the Australian Capital Territory Government have already taken initiatives in this area.
2(ii) Indigenous intellectual property Objective: Recognition of the intellectual property rights of the first peoples of Australia The knowledge and beliefs of Aboriginal and Torres Strait Islander peoples are fundamental to their identities and cultures. They are also resources of national and international significance. Indigenous intellectual properties include all types of artistic works, ecological and biological knowledge, ceremonies, spiritual knowledge and objects, including sacred and historical sites, ancestral remains and languages. The need to maintain language, cultural knowledge and spiritual understanding have remained on the agendas of many Aboriginal and Torres Strait Islander peoples as a key element in the struggle for their rights. The custodians of this knowledge have often lost control of this property by sharing this information with researchers. In some parts of Australia there has been a commercial exploitation of Indigenous knowledge, without the ownership of that knowledge being acknowledged, or an equitable sharing of any benefits arising from its use. Much knowledge in Aboriginal and Torres Strait Islander communities is shared from generation to generation. Indigenous intellectual property, such as the biological properties of medicinal plants and other species, may be owned as individual or communal knowledge which brings with it great responsibilities. The processes of dispossession and colonisation have interfered with the sharing of knowledge. The resulting loss of Indigenous culture and identity is a loss to Australia as a whole. An Indigenous Advisory Committee is being established under the Environment Protection and Conservation Act 1999 to assist in the protection of Indigenous ethnobiological knowledge in Australia. In 1999, Terri Janke finalised a report about intellectual property on behalf of ATSIC and the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS). This report, Our Culture: Our Future - Report on Australian Indigenous Cultural and Intellectual Property Rights makes many recommendations, including legislative intervention to protect Indigenous intellectual and cultural property rights. All governments, organisations and individuals using Indigenous cultural and intellectual property should consult this report. Actions - what needs to be done and who will do it
3. Community education and awareness Objectives
Australians like to think that their basic rights are well protected and, compared to many countries, this is probably true. As a nation we take great pride in our belief of "a fair go for all". In reality, however, all Australians do not get "a fair go" and many people do not really know about their human rights or about distinct Indigenous rights. Social research conducted by the Council for Aboriginal Reconciliation (1999/2000) reveals a great deal of misinformation about the status of Aboriginal and Torres Strait Islander peoples. Too often these perceptions continue to be reinforced by negative portrayal of Aboriginal and Torres Strait Islander peoples in the media. Many people express suspicion or concern about programs which are intended to improve the living standards of Indigenous peoples, and regard these as "unfair" or "unequal" treatment. The design of formal instruments to protect people’s rights is a relatively recent development in international law. Human rights and anti-discrimination laws provide some protection for human rights in Australia but many other countries are now providing comprehensive protection of rights through legislative mechanisms. Aboriginal and Torres Strait Islander peoples are entitled to the same legal rights of redress that Australian society offers to all its citizens. The Human Rights and Equal Opportunity Commission and State and Territory Anti-discrimination Commissions provide forums for redressing the violation of rights. Legal recognition and protection of Aboriginal and Torres Strait Islander rights will be much easier to achieve when the whole Australian community has a better understanding and appreciation of human rights in general, and how they should apply to Aboriginal and Torres Strait Islander peoples. Actions – what needs to be done and who will do it
4 - Cultures and heritage Objectives
4(i) The importance of land and waters Before European farming, pastoral activity and urban development, the landscape and waters were managed by Indigenous peoples in such a way that Australia had some of the world’s richest biodiversity. Even where soils were thin and rainfall restricted, a huge variety of flora and fauna flourished prior to British colonisation, but much of this diversity is now lost. Recognising Indigenous people’s knowledge of the natural environment and incorporating that knowledge into the way we manage Australia’s natural resources today can help to sustain both the country and the cultures of traditional Indigenous communities. Indigenous peoples’ connection with land and water is complex: ‘Land has a spiritual, cultural, political and economic value. It supports our identity, our spirit, our social relations, our cultural integrity and our survival. Land is the source of our physical and spiritual sustenance. Removed from our land we are literally removed from ourselves.’¹ The reconciliation process is still working to address the impact and consequences of the history of dispossession and dispersal of Indigenous peoples from their traditional lands. ¹ ( M. Dodson: Australia Institute Newsletter #10, 1997) 4(i)(a) Understanding native title rights In 1992, the High Court of Australia made a landmark decision in the Mabo case in which it recognised that Indigenous people had native title rights to their country before European colonisation and that, in some areas, these rights continue to exist. Native title describes the rights and interests of Aboriginal and Torres Strait Islander peoples in land and waters, according to their traditional laws and customs. The common law of Australia now recognises that native title rights may still exist where connection with land or water has been maintained and title has not been extinguished by an act of government. The Commonwealth Parliament passed the Native Title Act in 1993 which set up a process for native title to be recognised and recorded. Following a long period of negotiation, debate and controversy, the Native Title Amendment Act 1998 was passed in July 1998. In August 1998, the United Nations Committee on the Elimination of All Forms of Racial Discrimination sought information from Australia on certain Indigenous issues, including native title. In 1999, the Committee expressed concern about the consistency of the amended Native Title Act with the Convention on the Elimination of All Forms of Racial Discrimination and about a perceived lack of participation by Indigenous peoples in the legislative process. Aboriginal and Torres Strait Islander peoples’ aspirations for justice in regard to dispossession from their lands and waters remains unfinished business and they seek further negotiation of these matters with Commonwealth, State and Territory governments. 4(i)(b) Land rights Most Aboriginal and Torres Strait Islander peoples have been dispossessed either wholly or partly by the process of colonisation and economic development of Australia. Indigenous claims for restitution or compensation for loss of land and waters have met with different responses in the States and Territories. Aboriginal reserves, land trusts, and other legislated schemes have been variously introduced, so that significantly different arrangements exist in the different States and Territories. The most comprehensive arrangements were introduced in the Northern Territory, where the Aboriginal Land Rights (NT) Act 1976 has resulted in nearly 36 per cent of the total Territory land area reverting to Aboriginal ownership under freehold title. Significantly less land has returned to Indigenous ownership under State land rights schemes. Furthermore, legislation and policies controlling management of seas, coasts and waters have diminished Indigenous peoples’ enjoyment of their rights to benefit from the use of these traditional resources. It was recognised that many Indigenous Australians would not be able to regain rights to land through the Native Title Act 1993. And so, the Aboriginal and Torres Strait Islander Land Fund and the Indigenous Land Corporation (ILC) were established in 1995 as part of the Commonwealth response to the High Court’s Mabo decision. The Land Fund and ILC aim to help Indigenous people to acquire land and manage it in a way that provides social, cultural, environmental and economic benefits.
Actions - what needs to be done and who will do it
4(ii) Recognition and protection for Indigenous cultures, heritage and languages The process of reconciliation and the pursuit of rights relies on respect for Indigenous cultures, heritage and languages. These characteristics are critical to preserving the richness of cultures and identities for Aboriginal and Torres Strait Islander peoples which are part of the unique and distinctive attributes of the nation. The cultures and beliefs of Aboriginal and Torres Strait Islander peoples are still living despite many efforts to change them. Languages and cultures are closely linked for Aboriginal and Torres Strait Islander peoples. Maintaining knowledge of languages, among other things, provides an assurance of identity. The struggle to record and preserve Aboriginal and Torres Strait Islander peoples languages is ongoing. At the same time, to fully participate in Australian society, children need to become competent in English. One important way to preserve language is to teach it in schools through bilingual education programs. Culture extends further than languages. It is diverse and dynamic and reflects politics, histories, stories, songs, ceremonies, traditions and relationships to land. It is the right of Aboriginal and Torres Strait Islander peoples to enjoy their distinct cultures and to see these cultures acknowledged and respected by all Australians. Recognition and protection of Indigenous cultures and heritage is essential for achieving reconciliation. It is the Council’s view that the value and integrity of Aboriginal and Torres Strait Islander heritage must be fully protected through legislation and valued by all Australians. Actions - what needs to happen and who will do it
4(iii) Traditional law Aboriginal and Torres Strait Islander peoples have traditionally lived their lives and maintained their communities through highly developed systems of law which deal with issues such as ownership of lands, waters and resources, utilisation of flora and fauna and regulation of moral, social and religious customs. The High Court’s Mabo decision recognised the existence of native title based on these continuing traditional laws and customs. Many Indigenous people in Australia today still uphold cultural and spiritual systems of law (traditional or customary law). As a result, some Aboriginal people are living under two laws. Many people are forced daily to choose which law they will follow and uphold. Often, to follow one law is to break the other law or break social protocols of contemporary Australian society. Sanctions under one system are not understood or recognised under the other. This can result in the punishment of people under both community and Australian legal structures. Until there is true understanding and subsequent recognition of the legitimacy of traditional Aboriginal law, then the "double jeopardy" for many Indigenous Australians will continue. The impact of mainstream legal systems on Aboriginal and Torres Strait Islander peoples has been well documented, particularly in the reports of the Royal Commission into Aboriginal Deaths in Custody. In 1986, the Australian Law Reform Commission produced a report on issues relating to customary law and made many recommendations, many of which have never been implemented. However, there have been some significant developments in the recognition of common law rights since this report was completed. The scope of the report was large and indicated the extensive interface of customary law with Australian law. Actions - what needs to be done and who will do it
5. Social justice Objectives:
It is often said that, without social justice, you will not achieve reconciliation. The vision for social justice for Aboriginal and Torres Strait Islander peoples held by the Council is based on a society that empowers Indigenous individuals, communities and organisations to control their own destinies (Going Forward, 1995, p. 23). A society that ensures social justice for all Australians will result in new and improved relationships between Aboriginal and Torres Strait Islander peoples and the wider community.
5(i) Special measures Addressing the cycle of disadvantage and dispossession is the key to social justice. Methods to improve equality through the application of special measures policies have resulted in some improvements for Aboriginal and Torres Strait Islander peoples. It appears that many people do not understand special measures and think that it is unfair or undemocratic to treat some people differently. The Racial Discrimination Act 1975 (RDA), allows for the use of special measures. The RDA says quite clearly that special measures are not discriminatory. Special measures are used to break down barriers to equality, which is a fundamental human right. Special measures provide a mechanism to respond to the inequality or disadvantage experienced by groups or individuals. Identical treatment for all people, no matter what their circumstances, no matter what discrimination they face, is known as formal equality. However, treating everyone the same does not necessarily lead to equality. The alternative approach is substantive equality, where people are given differential treatment in accordance with their needs, so they are ultimately able to enjoy life from a level playing field, or "a fair go for all".
The Council and many other Australians seek urgent action to address the devastating effects of Indigenous over-representation in custody and the consequences of the earlier policies of forced removal of Aboriginal and Torres Strait Islander children from their families, which are two particular examples where the rights of Aboriginal and Torres Strait Islander peoples have been seriously breached. 5 (ii) Aboriginal and Torres Strait Islander deaths in custody Following years of extensive research, the National Report of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) was tabled in Parliament in 1991. The final report made 339 recommendations that aimed to address the tragedy of deaths and also minimise the number of Indigenous persons taken into custody. The life profiles of the 99 cases examined by the Royal Commission established that many of these people were young and had experienced unemployment, inadequate education, separation from their natural families, early contact with the criminal justice system, poor health and problems with alcohol. Essentially, these people suffered social and economic disadvantage. The Royal Commission noted that: Aboriginal people in custody do not die at a greater rate than non-Aboriginal people in custody. However, what is overwhelmingly different is the rate at which Aboriginal people come into custody, compared with the rate of the general community. Current practices within the criminal justice system must be reviewed and, of particular concern, is the impact of mandatory sentencing laws which exist in some States and Territories. Despite the recommendations made by the Royal Commission, Aboriginal and Torres Strait Islander peoples are even more over-represented in the criminal justice system today. Australian and international commentators have described this as "a national disgrace, a continuation of earlier policies which have been characterised as cultural genocide" (Cunneen and McDonald, 19971). The Council believes this situation is quite unacceptable for a nation seeking reconciliation. 1Cunneen, C. and McDonald, D. (1997) Keeping Aboriginal and Torres Strait Islander People out of Custody, ATSIC, Canberra 5(iii) Forced removal of Aboriginal and Torres Strait Islander children from their families In 1997, the Human Rights and Equal Opportunity Commission (HREOC) released the report, Bringing Them Home – the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families. The inquiry process required people to share the stories of their lives in the most intimate detail. Aboriginal and Torres Strait Islander peoples told their stories of grief and pain to a nation that knew little about this part of Australia’s history or the ongoing consequences of forced removal. Largely the response of Australians has been one of empathy and shock to discover that, in our very recent history, policies and practices were in place that denied the cultures and identities of Aboriginal and Torres Strait Islander peoples and that these policies were underpinned by assimilationist motives. It is well documented that many people who took removed children into care did so for the welfare of the children. But questions have been asked about the value and ethics of the methods employed ever since these policies commenced. The publicity that followed the release of the Bringing Them Home engendered a new wave of support for the reconciliation movement and served to increase the commitment of many Australians already involved. This greater understanding is of benefit to all Australians. By the end of 1999, there were many calls for alternatives to litigation for reparations. In November 1999, the Senate passed a motion to address a range of matters highlighted in the Bringing Them Home report. The motion called for the Legal and Constitutional References Committee to inquire and report on matters including: processes to increase support and family reunions for members of the stolen generation; recording of stories of those affected by forced removal; education for the whole community about this part of Australia’s history; and ways to implement an alternative dispute resolution tribunal for those affected by forced removal. Aboriginal and Torres Strait Islander peoples feel their rights will continue to be denied until a formal process to address the consequences of forced removal are met. Not least of the issues identified is a less adversarial process for reparation and restitution. Actions - what needs to be done and who will do it
DRAFT STATEMENT OF INDIGENOUS RIGHTS This Statement is not meant to be conclusive of all those rights that the Aboriginal Peoples believe they possess but it is at least a reasonable start. It does not stop any other rights or issues from being raised by the Aboriginal peoples.. For the purpose of attempting to work within the Constitutional framework of Australia this whole proposition is put forward without in any way forfeiting the notion of Sovereignty that Aborigines would hold has never been ceded or surrendered. Indeed the proposition is put forward in the recognition that there are many Aboriginal peoples that would not recognise the Australian constitution as a Document to which they have given any consent.
Aboriginal and Torres Strait Islander peoples have the right to all the human rights and fundamental freedoms recognised in international law, as well as to distinct rights as Indigenous peoples. 2. Distinct characteristics and identities Aboriginal and Torres Strait Islander peoples have the right to maintain and develop our distinct characteristics and identifies, whilst taking party in the life of the country as a whole. This includes the right to identify as Indigenous. We shall not be subject to: Actions which threaten our cultures and identifies; The removal of our children from our families and communities; Taking of our lands and resources; or Any other measures of assimilation. 3. Self-determination Aboriginal and Torres Strait Islander peoples have the right to self-determination. This means our right to negotiate our political status and to pursue our economic, social and cultural development. 4. Law Aboriginal and Torres Strait Islander peoples have the right to our own law, customs and traditions. 5. Culture Aboriginal and Torres Strait Islander people have the right to our unique cultural traditions and customs. This includes aspects of our cultures such as designs, ceremonies, performances and technologies. We have the right to own and control our cultural and intellectual property, including our sciences, technologies, medicines, knowledge of flora and fauna, designs, arts and performances. Our cultural property taken without consent shall be returned to us. 6. Spiritual and Religious Traditions Aboriginal and Torres Straight Islander peoples have the right to our spiritual and religious traditions. This includes the right to preserve and protect our sacred sites, ceremonial objects and the remains of our ancestors. 7. Language Aboriginal and Torres Strait Islander people have the right to our languages, histories, stories, oral traditions and names for people and places. This includes the right to be heard and receive information in our own languages. In courts, other proceedings and in the criminal justice system, - we shall have the right to understand and be understood, through interpreters and other appropriate ways. 8. Participation and partnerships Aboriginal and Torres Strait Islander peoples have the right to participate in law and policy-making and in decisions that affect us. This includes the right to choose our own representatives. Governments shall obtain our consent before adopting these laws and policies. Governments shall negotiate partnerships with Aboriginal and Torres Strait Islander representatives’ bodies at local, regional, State and national levels. 9. Economic and social development Aboriginal and Torres Strait Islander people have the right to determine priorities and strategies for our economic and social development. This includes the right to determine health, housing and infrastructure, and other economic and social programs and, to the extent possible, to deliver these through our own organisations. There shall be recognition of the importance of empowerment for decision-making and development at regional and community levels. There shall be Indigenous participation in all regional development planning processes. Aboriginal and Torres Strait Islander peoples shall have full access to, and equitable outcomes from participation in relevant mainstream programs. 10. Special measures Aboriginal and Torres Strait Islander peoples have the right to special measures to improve our economic and social conditions. This includes in the areas of employment, education and training, housing and infrastructure, and health. Accurate data shall be maintained concerning the outcomes of programs which impact on the well being of Aboriginal and Torres Strait Islander people. 11. Education and training Aboriginal and Torres Strait Islander people have the right to all forms and levels of public education and training. We also have the right to our own schools and to provide education in our own languages. Indigenous children living outside communities shall be able to learn their own cultures and languages. 12. Land and resources Aboriginal and Torres Strait Islander peoples have the right to own and control the use of our land, waters and other resources. This includes the right to return of land and resources taken without our consent. Where this is not possible, we shall receive just compensation. 13. Resource development Aboriginal and Torres Strait Islander peoples have the right to determine strategies for the development of our land and resources. Governments shall obtain our consent before giving approval to activities affecting our land and resources, including the development of mineral resources. We shall receive just compensation for any such activities. 14. Self-government As a form of self-determination, Aboriginal and Torres Strait Islander peoples have the right to self-government and autonomy in relation to our own affairs. This includes the right to determine the structures and membership of our self-governing institutions. Governments shall facilitate the negotiation of self-government and regional agreements. 15. Constitutional recognition The Federal Parliament shall initiate processes leading to concrete constitutional change to recognise and protect the special place and rights of Aboriginal and Torres Strait Islander peoples in the Australian polity. 16. Treaties and agreement The Federal Parliament shall enact legislation establishing a framework for the negotiation of agreements with the Indigenous peoples of Australia. Governments shall respect treaties and agreements entered into with Aboriginal and Torres Strait Islander peoples. 17. Legislation The Federal Parliament shall establish a discussion, research, information and negotiation forum to promote public awareness and to draft national legislation enacting principles of recognition, guidelines for public policy, and the framework for the negotiation of agreements referred to above. DRAFT
UNITED NATIONS DECLARATION ON THE RIGHTS (As at Aug 1994) Affirming that indigenous peoples are equal in dignity and rights to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such, Affirming also that all peoples contribute to the diversity and richness of civilizations and cultures, which constitute the common heritage of humankind, Affirming further that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin, racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust, Reaffirming also that indigenous peoples, in the exercise of their rights, should be free from discrimination of any kind, Concerned that indigenous peoples have been deprived of their human rights and fundamental freedoms, resulting, inter alia, in their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests, Recognizing the urgent need to respect and promote the inherent rights and characteristics of indigenous peoples, especially their rights to their lands, territories and resources, which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, Welcoming the fact that indigenous peoples are organizing themselves for political, economic, social and cultural enhancement and in order to bring an end to all forms of discrimination and oppression wherever they occur, Convinced that control by indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures and traditions, and to promote their development in accordance with their aspirations and needs, Recognizing also that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment, Emphasizing the need for demilitarization of the lands and territories of indigenous peoples, which will contribute to peace, economic and social progress and development, understanding and friendly relations among nations and peoples of the world, Recognizing in particular the right of indigenous families and communities to retain shared responsibility for the upbringing, training, education and well-being of their children, Recognizing also that indigenous peoples have the right freely to determine their relationships with States in a spirit of coexistence, mutual benefit and full respect, Considering that treaties, agreements and other arrangements between States and indigenous peoples are properly matters of international concern and responsibility, Acknowledging that the Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights affirm the fundamental importance of the right of self-determination of all peoples, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development, Bearing in mind that nothing in this Declaration may be used to deny any peoples their right of self-determination, Encouraging States to comply with and effectively implement all international instruments, in particular those related to human rights, as they apply to indigenous peoples, in consultation and cooperation with the peoples concerned, Emphasizing that the United Nations has an important and continuing role to play in promoting and protecting the rights of indigenous peoples, Believing that this Declaration is a further important step forward for the recognition, promotion and protection of the rights and freedoms of indigenous peoples and in the development of relevant activities of the United Nations system in this field, Solemnly proclaims the following United Nations Declaration on the Rights of Indigenous Peoples:
Article 1 Indigenous peoples have the right to the full and effective enjoyment of all human rights and fundamental freedoms recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law.
Indigenous individuals and peoples are free and equal to all other individuals and peoples in dignity and rights, and have the right to be free from any kind of adverse discrimination, in particular that based on their indigenous origin or identity.
Indigenous 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.
Indigenous peoples have the right to maintain and strengthen their distinct political, economic, social and cultural characteristics, as well as their legal systems, while retaining their rights to participate fully, if they so choose, in the political, economic, social and cultural life of the State.
Every indigenous individual has the right to a nationality.
Article 6 Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and to full guarantees against genocide or any other act of violence, including the removal of indigenous children from their families and communities under any pretext. In addition, they have the individual rights to life, physical and mental integrity, liberty and security of person. Article 7 Indigenous peoples have the collective and individual right not to be subjected to ethnocide and cultural genocide, including prevention of and redress for: (a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities; (b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources; (c) Any form of population transfer which has the aim or effect of violating or undermining any of their rights; (d) Any form of assimilation or integration by other cultures or ways of life imposed on them by legislative, administrative or other measures; (e) Any form of propaganda directed against them.
Indigenous peoples have the collective and individual right to maintain and develop their distinct identities and characteristics, including the right to identify themselves as indigenous and to be recognized as such. Article 9 Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No disadvantage of any kind may arise from the exercise of such a right.
Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.
Indigenous peoples have the right to special protection and security in periods of armed conflict. States shall observe international standards, in particular the Fourth Geneva Convention of 1949, for the protection of civilian populations in circumstances of emergency and armed conflict, and shall not: (a) Recruit indigenous individuals against their will into the armed forces and, in particular, for use against other indigenous peoples; (b) Recruit indigenous children into the armed forces under any circumstances; (c) Force indigenous individuals to abandon their lands, territories or means of subsistence, or relocate them in special centres for military purposes; (d) Force indigenous individuals to work for military purposes under any discriminatory conditions. PART III Article 12 Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artifacts, designs, ceremonies, technologies and visual and performing arts and literature, as well as the right to the restitution of cultural, intellectual, religious and spiritual property taken without their free and informed consent or in violation of their laws, traditions and customs.
Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of ceremonial objects; and the right to the repatriation of human remains. States shall take effective measures, in conjunction with the indigenous peoples concerned, to ensure that indigenous sacred places, including burial sites, be preserved, respected and protected.
Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons. States shall take effective measures, whenever any right of indigenous peoples may be threatened, to ensure this right is protected and also to ensure that they can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means. PART IV Article 15 Indigenous children have the right to all levels and forms of education of the State. All indigenous peoples also have this right and the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning. Indigenous children living outside their communities have the right to be provided access to education in their own culture and language. States shall take effective measures to provide appropriate resources for these purposes.
Article 16 Indigenous peoples have the right to have the dignity and diversity of their cultures, traditions, histories and aspirations appropriately reflected in all forms of education and public information. States shall take effective measures, in consultation with the indigenous peoples concerned, to eliminate prejudice and discrimination and to promote tolerance, understanding and good relations among indigenous peoples and all segments of society.
Indigenous peoples have the right to establish their own media in their own languages. They also have the right to equal access to all forms of non-indigenous media. States shall take effective measures to ensure that State-owned media duly reflect indigenous cultural diversity.
Indigenous peoples have the right to enjoy fully all rights established under international labour law and national labour legislation. Indigenous individuals
have the right not to be subjected to any discriminatory conditions
of labour, employment or salary. PART
V Article 19 Indigenous peoples have the right to participate fully, if they so choose, at all levels of decision-making in matters which may affect their rights, lives and destinies through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.
Indigenous peoples have the right to participate fully, if they so choose, through procedures determined by them, in devising legislative or administrative measures that may affect them. States shall obtain the free and informed consent of the peoples concerned before adopting and implementing such measures.
Indigenous peoples have the right to maintain and develop their political, economic and social systems, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities. Indigenous peoples who have been deprived of their means of subsistence and development are entitled to just and fair compensation.
Indigenous peoples have the right to special measures for the immediate, effective and continuing improvement of their economic and social conditions, including in the areas of employment, vocational training and retraining, housing, sanitation, health and social security. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and disabled persons.
Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, indigenous peoples have the right to determine and develop all health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.
Indigenous peoples have the right to their traditional medicines and health practices, including the right to the protection of vital medicinal plants, animals and minerals. They also have the
right to access, without any discrimination, to all medical institutions,
health services and medical care. PART
VI Article 25 Indigenous peoples have the right to maintain and strengthen their distinctive spiritual and material relationship with the lands, territories, waters and coastal seas and other resources which they have traditionally owned or otherwise occupied or used, and to uphold their responsibilities to future generations in this regard. Article 26 Indigenous peoples have the right to own, develop, control and use the lands and territories, including the total environment of the lands, air, waters, coastal seas, sea-ice, flora and fauna and other resources which they have traditionally owned or otherwise occupied or used. This includes the right to the full recognition of their laws, traditions and customs, land-tenure systems and institutions for the development and management of resources, and the right to effective measures by States to prevent any interference with, alienation of or encroachment upon these rights. Article 27 Indigenous peoples have the right to the restitution of the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, occupied, used or damaged without their free and informed consent. Where this is not possible, they have the right to just and fair compensation. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status.
Indigenous peoples have the right to the conservation, restoration and protection of the total environment and the productive capacity of their lands, territories and resources, as well as to assistance for this purpose from States and through international cooperation. Military activities shall not take place in the lands and territories of indigenous peoples, unless otherwise freely agreed upon by the peoples concerned. States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands and territories of indigenous peoples. States shall also take effective measures to ensure, as needed, that programmes for monitoring, maintaining and restoring the health of indigenous peoples, as developed and implemented by the peoples affected by such materials, are duly implemented.
Indigenous peoples are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property. They have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs and visual and performing arts.
Indigenous peoples
have the right to determine and develop priorities and strategies for
the development or use of their lands, territories and other resources,
including the right to require that States obtain their free and informed
consent prior to the approval of any project affecting their lands,
territories and other resources, particularly in connection with the
development, utilization or exploitation of mineral, water or other
resources. Pursuant to agreement with the indigenous peoples concerned,
just and fair compensation shall be provided for any such activities
and measures taken to mitigate adverse environmental, economic, social,
cultural or spiritual impact. PART
VII Article 31 Indigenous peoples, as a specific form of exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, including culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resources management, environment and entry by non-members, as well as ways and means for financing these autonomous functions.
Article 32 Indigenous peoples have the collective right to determine their own citizenship in accordance with their customs and traditions. Indigenous citizenship does not impair the right of indigenous individuals to obtain citizenship of the States in which they live. Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.
Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive juridical customs, traditions, procedures and practices, in accordance with internationally recognized human rights standards.
Indigenous peoples have the collective right to determine the responsibilities of individuals to their communities.
Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with other peoples across borders. States shall take effective measures to ensure the exercise and implementation of this right.
Indigenous peoples
have the right to the recognition, observance and enforcement of treaties,
agreements and other constructive arrangements concluded with States
or their successors, according to their original spirit and intent,
and to have States honour and respect such treaties, agreements and
other constructive arrangements. Conflicts and disputes which cannot
otherwise be settled should be submitted to competent international
bodies agreed to by all parties concerned. PART
VIII Article 37 States shall take effective and appropriate measures, in consultation with the indigenous peoples concerned, to give full effect to the provisions of this Declaration. The rights recognized herein shall be adopted and included in national legislation in such a manner that indigenous peoples can avail themselves of such rights in practice.
Indigenous peoples have the right to have access to adequate financial and technical assistance, from States and through international cooperation, to pursue freely their political, economic, social, cultural and spiritual development and for the enjoyment of the rights and freedoms recognized in this Declaration.
Indigenous peoples have the right to have access to and prompt decision through mutually acceptable and fair procedures for the resolution of conflicts and disputes with States, as well as to effective remedies for all infringements of their individual and collective rights. Such a decision shall take into consideration the customs, traditions, rules and legal systems of the indigenous peoples concerned.
The organs and specialized agencies of the United Nations system and other intergovernmental organizations shall contribute to the full realization of the provisions of this Declaration through the mobilization, inter alia, of financial cooperation and technical assistance. Ways and means of ensuring participation of indigenous peoples on issues affecting them shall be established.
The United Nations shall take the necessary steps to ensure the implementation of this Declaration including the creation of a body at the highest level with special competence in this field and with the direct participation of indigenous peoples. All United Nations bodies shall promote respect for and full application of the provisions of this Declaration. PART
IX Article 42 The rights recognized herein constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.
All the rights and freedoms recognized herein are equally guaranteed to male and female indigenous individuals. Article 44 Nothing in this Declaration may be construed as diminishing or extinguishing existing or future rights indigenous peoples may have or acquire.
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations.
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