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Reconciliation and Social Justice Library
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Reconciliation and Social Justice Library |
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This Project is concerned with the crafting of governance structures for
Indigenous Australians so as to facilitate interaction with non-Indigenous
governments and structures while, at the same time, remaining as close as
possible to Indigenous structures and processes.[1]
Guidance is being sought from experience under various regimes in Australia,
and from experience in other parts of the `First World' such as the USA,
Canada, New Zealand, Scandinavia and Greenland.
Guidance can also be obtained from standards established by international law
instruments, not so much in terms of detail but, rather, in terms of broad
principles accepted by large numbers of States.
A central aspiration of Indigenous peoples world-wide is to have an effective
voice in regard to decisions by non-Indigenous governments affecting their
lands and waters, natural resources, wildlife and environment. This aspiration
is at least partly covered by a number of international law standards. Some of
those standards apply to `peoples' generally, some apply to `minorities', and
some apply specifically to `Indigenous peoples'.
Most of the relevant standards represent binding obligations on States which
have accepted them -- Australia has ratified most of these. Some of them are
now regarded as jus cogens norms, to be recognised by all States
regardless of formal ratification.
Other standards may not be formally binding in the legal sense because they are
in the form of `soft law', for example, declarations, General Assembly
resolutions or recommendations from World Conferences.
Considerations of relevant matters at the international level may, for
convenience, be grouped under distinct headings of `rights' although for
Indigenous peoples there is considerable overlap among these categories, and
they insist that their rights are integrated and interdependent. These headings
are equality rights, property rights, cultural rights and participation rights.
The United Nations Charter requires respect for human rights and for
fundamental freedoms for all without distinction as to race, sex, language, or
religion (Articles 1(3), 55(c)). The Universal Declaration of Human Rights
develops this principle in
Article 2:
Everyone is entitled to all the rights and freedoms set forth in this
Declaration without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status ...
Article 7 of the Universal Declaration of Human Rights is also
relevant:
All are equal before the law and are entitled without any discrimination to
equal protection of the law. All are entitled to equal protection against any
discrimination in violation of this Declaration and against any incitement to
such discrimination.
The International Covenant on Civil and Political Rights (ICCPR) and the
International Covenant on Economic Social and Cultural Rights (ICESCR)
both spell out the obligations on State Parties in Article 2 which, in each
case, precludes distinction or discrimination `of any kind such as race,
colour, sex, language, political or other opinion, national or social origin,
property, birth or other status'. Article 26 of the ICCPR also provides:
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race, colour,
sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.
The entire purpose of the International Convention on the Elimination of All
Forms of Racial Discrimination (ICERD) is, of course, to develop the broad
principle of non-discrimination on the basis of race and to set forth a range
of obligations on States Parties, both in general, and in relation to specific
human rights (for example, the right to property). The Convention also makes it
clear that all distinctions on the basis of race are not necessarily forbidden;
in some circumstances `special measures' to overcome disadvantage are permitted
(Article 1(4)) and may even be required
(Article 2(2)).
There is a strong body of opinion that the principle against discrimination on
the basis of race has become a principle of customary international law,
independently of any specific treaty obligations.[2]
Does the non-discrimination principle require only formal equality of
treatment? May there be an obligation to provide additional levels of
protection for particular groups? Reference has been made to the provisions of
Articles 1(4) and 2(2) of ICERD as to special measures for the purpose of
overcoming disadvantage -- such special measures will not constitute
`discrimination' for the purposes of the Convention. The Human Rights Committee
under ICCPR has made the same point in its General Comment 18 on the principle
of non-discrimination. The Committee also notes that
... not every differentiation of treatment will constitute discrimination, if
the criteria for such differentiation are reasonable and objective and if the
aim is to achieve a purpose which is legitimate under the Covenant.
Similarly the Committee on the Elimination of Racial Discrimination under
ICERD, in General Recommendation XIV on Article 1(1), observes that
... a differentiation of treatment will not constitute discrimination if the
criteria for such differentiation, judged against the objectives and purposes
of the Convention, are legitimate or fall within the scope of Article 1,
paragraph 4, of the Convention ... In seeking to determine whether an action
has an effect contrary to the Convention, it will look to see whether that
action has an unjustifiable disparate impact upon a group distinguished by
race, colour, descent, or national or ethnic origin.
The relationship of Indigenous peoples to their land is of a qualitatively
different nature from the relationship of non-Indigenous peoples to land. It
requires differential treatment in order to achieve substantive equality of
outcome. This proposition has been accepted in a series of Australian inquiries
into land rights legislation.[3] It has also
been accepted in international law (as discussed below).
The issue is not solely to do with principles of non-discrimination. It relates
to equality rights generally, and, to the specific rights of ethnic minorities
and Indigenous peoples.
True equality requires measures (a) to ensure that members of racial minorities
are placed in every respect on a footing of perfect equality with other
citizens and (b) to ensure for the minority the means to preserve their
particular characteristics and traditions. This was decided as long ago as 1935
by the Permanent Court of International Justice in its Advisory Opinion on
Minority Schools in Albania.[4]
The need for differential treatment to protect the basic and distinguishing
characteristics of minorities has been reiterated on a number of subsequent
occasions, for example, in the judgment of Judge Tanaka in the 1966 South
West Africa Case in the International Court of Justice.[5]
The Universal Declaration of Human Rights (UDHR) was adopted by the UN
General Assembly on 10 December 1948. Formally, it has only the status of a
Declaration or resolution, as distinct from a binding treaty, but it provided
the basis for the subsequent development of the two core human rights covenants
-- the ICCPR (and its two Optional Protocols) and the ICESCR. Australia has
ratified both Covenants. The UDHR, with the Covenants, is generally known as
the International Bill of Human Rights.
Article 17 of the UDHR states:
1 Everyone has the right to own property alone as well as in association with
others.
2 No one shall be arbitrarily deprived of his [sic] property.
Article 17 was not incorporated in the language of the Covenants.
However, it may have some independent binding force, either on the basis that
the UDHR represents customary international law, or on the basis that it
represents an authoritative interpretation of the references to human rights in
the Charter of the United Nations. The Charter does, of course, have
binding legal force in regard to UN member States.[6]
The principle in Article 17 of UDHR is, however, incorporated in ICERD. Article
5 requires equality before the law, without distinction as to race, colour, or
national or ethnic origin, in the enjoyment of various rights, including:
(d) (v) The right to own property alone as well as in association with
others.
(vi) The right to inherit.
Australia has ratified ICERD and implemented most of its obligations in
national law via the Racial Discrimination Act 1975 (Cth). It was on
this basis that the High Court of Australia, in Mabo v Queensland,[7] held invalid a 1985 Queensland Act to
extinguish native title in the Torres Strait. It was also on this basis that
the High Court, in Western Australia v Commonwealth,[8] held invalid WA legislation to extinguish
native title and substitute defeasible statutory rights of `traditional
usage'.
The Committee on the Elimination of Racial Discrimination monitors compliance
by States parties with ICERD. On 18 August 1997 the Committee published General
Recommendation XXIII(51) setting out its interpretation of the Convention in
relation to Indigenous peoples.[9] Paragraphs
3-5 of the General Recommendation state:
3 The Committee is conscious of the fact that in many regions of the world
indigenous peoples have been, and are still being, discriminated against,
deprived of their human rights and fundamental freedoms and in particular that
they have lost their land and resources to colonists, commercial companies and
State enterprises. Consequently the preservation of their culture and their
historical identity has been and still is jeopardised.
4 The Committee calls in particular upon States parties to:
(a) recognise and respect indigenous distinct culture, history, language and
way of life as an enrichment of the State's cultural identity and to promote
its preservation;
(b) ensure that members of indigenous peoples are free and equal in dignity
and rights and free from any discrimination, in particular that based on
indigenous origin or identity;
(c) provide indigenous peoples with conditions allowing for a sustainable
economic and social development compatible with their cultural
characteristics;
(d) ensure that members of 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;
(e) ensure that indigenous communities can exercise their rights to practice
and revitalise their cultural traditions and customs, to preserve and to
practice their languages.
5 The Committee especially calls upon States parties to recognise and protect
the rights of indigenous peoples to own, develop, control and use their
communal lands, territories and resources and, where they have been deprived of
their lands and territories traditionally owned or otherwise inhabited or used
without their free and informed consent, to take steps to return these lands
and territories. Only when this is for factual reasons not possible, the right
to restitution should be substituted by the right to just, fair and prompt
compensation. Such compensation should as far as possible take the form of
lands and territories.
The emphasis on Indigenous culture in this General Recommendation receives
additional support from the ICCPR.
In Article 27 the ICCPR provides:
In those states in which ethnic, religious or linguistic minorities exist,
persons belonging to such minorities shall not be denied the right, in
community with the other members of their group, to enjoy their own culture, to
profess and practice their own religion, or to use their own language.[10]
The committee that monitors compliance by States parties with the ICCPR is the
Human Rights Committee. In formulating its `views' on a number of
communications brought to it under the first Optional Protocol to the
Convention, it has made it clear that Article 27 applies to the use of land and
resources by Indigenous peoples.[11]
In a 1995 General Comment on Article 27, the Human Rights Committee said:
... [c]ulture manifests itself in many forms, including a particular way of
life associated with the use of land resources, especially in the case of
indigenous peoples ... The enjoyment of those rights may require positive legal
means of protection and measures to ensure the effective participation of
members of minority communities in decisions which affect them.
The reference in this General Comment to `effective participation' draws
attention to another set of human rights.
The right of `peoples' to `self-determination' (together with the principle of
equal rights and non-discrimination) is one of the few specifics in the United
Nations Charter's references to human rights. Even then, it remained an
elusively broad concept.
It was given closer definition in the identically-worded Article 1 in both
Covenants (the ICCPR and the ICESCR):
1 All peoples have the right of self-determination. By virtue of that right
they freely determine their political status and freely pursue their economic,
social and cultural development.
2 All peoples may, for their own ends, freely dispose of their natural wealth
and resources ... In no case may a people be deprived of its own means of
subsistence.
3 The States Parties to the present Covenant ... shall promote the realisation
of the right of self-determination, and shall respect that right, in conformity
with the provisions of the Charter of the United Nations.
This collective right of entire `peoples' is usually discussed in relation to
their `political status', especially in the context of decolonisation. However,
Article 1(1) also stresses `economic, social and cultural' issues, and Article
1(2) particularly emphasises economic issues. Article 1 has particular
relevance to issues of resource development on the lands and waters of
Indigenous peoples.
The Committee on the Elimination of Racial Discrimination (CERD), in its 1996
General Recommendation XXI(48) on the Right to Self-Determination[12] stressed that the `economic, social and
cultural' aspects represent the `internal aspect' of the right to
self-determination. In paragraph 10, the Committee stated that
...Governments should be sensitive towards the rights of persons belonging to
ethnic groups, particularly their right to lead lives of dignity, to preserve
their culture, to share equitably in the fruits of national growth and to play
their part in the Government of the country of which they are citizens. ...
Article 3 of the Draft Declaration on the Rights of Indigenous
Peoples[13](currently under consideration
by the UN Commission on Human Rights) echoes the language of Article 1(1) of
the Covenants in relation to Indigenous peoples.
This right of self-determination would, of itself, appear to require the
`effective participation' of Indigenous peoples in decisions which affect them,
their territories and resources, and their cultures. It thus presupposes
interaction on such matters between Indigenous peoples and the dominant
non-Indigenous society, but requires that such interaction be based on proper
respect for the rights of Indigenous peoples in terms of their own law,
traditions and culture.
Article 25 of the ICCPR confers a general right of public participation which
focuses primarily on such political matters as elections and access to public
office. But more specific provision for `effective participation' by Indigenous
peoples in government development decisions has been made in a number of recent
and emerging international instruments particularly related to environmental
protection and sustainable development which are key concerns of many
Indigenous peoples. There have also been important resolutions on the issue
emerging from international conferences.[14]
The Rio Declaration on Environment and Development was adopted at
the 1992 UN Conference on Environment and Development.[15] Generally, it stresses the need for sustainable
development and environmental protection, with adequate opportunities for
participation by peoples affected by development proposals. Principle 22
states:
Indigenous people and their communities and other local communities have a
vital role in environmental management and development because of their
knowledge and traditional practices. States should recognise and duly support
their identity, culture and interests and enable their effective participation
in the achievement of sustainable development.
The 1992 Rio Conference went beyond broad principles and produced more specific
standards in Agenda 21: Programme of Action for Sustainable Development
adopted by most nations in the world at the Rio Conference.[16] Chapter 26 of Agenda 21 is headed `Recognising and
strengthening the role of Indigenous People and their Communities':
Programme Area
Basis for Action
26.1 Indigenous people and their communities have an historical relationship
with their lands and are generally descendants of the original inhabitants of
such lands. In the context of this chapter the term `lands' is understood to
include the environment of the areas which the people concerned traditionally
occupy. Indigenous people and their communities represent a significant
percentage of the global population. They have developed over many generations
a holistic traditional scientific knowledge of their lands, natural resources
and environment. Indigenous people and their communities shall enjoy the full
measure of human rights and fundamental freedoms without hindrance or
discrimination. Their ability to participate fully in sustainable development
practices on their lands has tended to be limited as a result of factors of an
economic, social and historical nature. In view of the interrelationship
between the natural environment and its sustainable development and the
cultural, social, economic and physical well-being of indigenous people,
national and international efforts to implement environmentally sound and
sustainable development should recognise, accommodate, promote and strengthen
the role of indigenous people and their communities.
Objectives
26.3 In full partnership with indigenous people and their communities,
Governments and, where appropriate, intergovernmental organisations should aim
at fulfilling the following objectives;
(a) Establishment of a process to empower indigenous people and their
communities through measures that include:
(i) Adoption or strengthening of appropriate policies and/or legal
instruments at the national level;
(ii) Recognition that the lands of indigenous people and their communities
should be protected from activities that are environmentally unsound or that
the indigenous people concerned consider to be socially and culturally
inappropriate;
(iii) Recognition of their values, traditional knowledge and resource
management practices with a view to promoting environmentally sound and
sustainable development;
(iv) Recognition that traditional and direct dependence on renewable
resources and ecosystems, including sustainable harvesting, continues to be
essential to the cultural, economic and physical well- being of indigenous
people and their communities;
(v) Development and strengthening of national dispute-resolution
arrangements in relation to settlement of land and resource- management
concerns;
(vi) Support for alternative environmentally sound means of production to
ensure a range of choices on how to improve their quality of life so that
they can effectively participate in sustainable development;
(vii) Enhancement of capacity-building for indigenous communities, based on
the adaptation and exchange of traditional experience, knowledge and
resource-management practices, to ensure their sustainable development;
(b) Establishment, where appropriate, of arrangements to strengthen the active
participation of indigenous people and their communities in the national
formulation of policies, laws and programmes relating to resource management
and other development processes that may affect them, and their initiation of
proposals for such policies and programmes;
(c) Involvement of indigenous people and their communities at the national and
local levels in resource management and conservation strategies and other
relevant programmes established to support and review sustainable development
strategies, such as those suggested in other programme areas of Agenda 21.
Activities
26.4 Some indigenous people and their communities may require, in accordance
with national legislation, greater control over their lands, self-management of
their resources, participation in development decisions affecting them,
including, where appropriate, participation in the establishment or management
of protected areas. The following are some of the specific measures which
Governments could take:
(a) Consider the ratification and application of existing international
conventions relevant to indigenous people and their communities (where not
yet done) and provide support for the adoption by the General Assembly of a
declaration on indigenous rights;
(b) Adopt or strengthen appropriate policies and/or legal instruments that
will protect indigenous intellectual and cultural property and the right to
preserve customary and administrative systems and practices.
26.6 Governments, in full partnership with indigenous people and their
communities should, where appropriate:
(a) Develop or strengthen national arrangements to consult with indigenous
people and their communities with a view to reflecting their needs and
incorporating their values and traditional and other knowledge and practices in
national policies and programmes in the field of natural resource management
and conservation and other development programmes affecting them.
The World Conference on Human Rights, held in Vienna in 1993,
produced the Vienna Declaration and Programme of Action.[17] In paragraph 31, the World Conference urged States `to
ensure the full and free participation of indigenous people in all aspects of
society, in particular in matters of concern to them'.
The International Conference on Population and Development was
held in 1994 in Cairo.[18] Chapter VI D
relates specifically to Indigenous people. Objectives, as set out in 6.24,
include:
(a) To incorporate the perspective and needs of indigenous communities into the
design, implementation, monitoring and evaluation of the population,
development and environment programmes that affect them.
Actions proposed in the Programme of Action include:
6.27 Government should respect the cultures of indigenous people and enable
them to have tenure and manage their lands, protect and restore the natural
resources and ecosystems on which indigenous communities depend for their
survival and well-being and, in consultation with indigenous people, take this
into account in the formulation of national population and development
policies.
The World Summit for Social Development took place in Copenhagen in
March 1995.[19] Clauses in the Copenhagen
Declaration on Social Development include commitments to:
26 (m) Recognise and support indigenous people in their pursuit of economic and
social development, with full respect for their identity, traditions, forms of
social organisation and cultural values.
In addition:
Commitment 4
(f) Recognise and respect the right of indigenous people to maintain and
develop their identity, culture and interests, support their aspirations for
social justice and provide an environment that enables them to participate in
the social, economic and political life of their country.
The Program of Action from Copenhagen includes the following prescriptions:
31 (f) protecting, within the national context, the traditional rights to land
and other resources of pastoralists, fisher workers and nomadic and indigenous
people, and strengthening land management in the areas of pastoral or nomadic
activity, building on traditional communal practices, controlling encroachment
by others.
75 (g) promoting and protecting the rights of indigenous peoples, and
empowering them to make choices that enable them to retain their cultural
identity while participating in national, economic and social life, with full
respect for their cultural values, languages, traditions and forms of social
organisations.
In 1989, the International Labour Organisation (ILO) revised ILO Convention No
107 (1957) by adopting ILO Convention No 169 Concerning Indigenous and
Tribal Peoples in Independent Countries.[20] ILO Convention No 169 has not been ratified by
Australia.
A number of the operative paragraphs are directly relevant to this Project:
Article 2
1 Governments shall have the responsibility for developing, with the
participation of the peoples concerned, coordinated and systematic action to
protect the rights of these peoples and to guarantee respect for their
integrity.
2 Such action shall include measures for:...
(b) promoting the full realisation of the social, economic and cultural rights
of these peoples with respect for their social and cultural identity, their
customs and traditions and their institutions.
Article 5
In applying the provisions of this Convention:
(a) the social, cultural, religious and spiritual values and practices of these
peoples shall be recognised and protected, and due account shall be taken of
the nature of the problems which face them both as groups and as
individuals;
(b) the integrity of the values, practices and institutions of these peoples
shall be respected;
(c) policies aimed at mitigating the difficulties experienced by these peoples
in facing new conditions of life and work shall be adopted, with the
participation and co-operation of the peoples affected.
Article 6
1 In applying the provisions of this Convention, Governments shall:
(a) consult the peoples concerned, through appropriate procedures and in
particular through their representative institutions, whenever consideration is
being given to legislative or administrative measures which may affect them
directly;
(b) establish means by which these peoples can freely participate, to at least
the same extent as other sectors of the population, at all levels of
decision-making in elective institutions and administrative and other bodies
responsible for policies and programmes which concern them;
(c) establish means for the full development of these peoples' own institutions
and initiatives, and in appropriate cases provide the resources necessary for
this purpose.
2 The consultations carried out in application of this Convention shall be
undertaken, in good faith and in a form appropriate to the circumstances, with
the objective of achieving agreement or consent to the proposed measures.
Article 7
1 The peoples concerned shall have the right to decide their own priorities for
the process of development as it affects their lives, beliefs, institutions and
spiritual well-being and the lands they occupy or otherwise use; and to
exercise control, to the extent possible, over their own economic, social and
cultural development. In addition, they shall participate in the formulation,
implementation and evaluation of plans and programmes for national and regional
development which may affect them directly.
2 The improvement of the conditions of life and work and levels of health and
education of the peoples concerned, with their participation and cooperation,
shall be a matter of priority in plans for the overall economic development of
areas they inhabit. Special projects for development of the areas in question
shall also be so designed as to promote such improvement.
3 Governments shall ensure that, whenever appropriate, studies are carried out,
in co-operation with the peoples concerned, to assess the social, spiritual,
cultural and environmental impact on them of planned development activities.
The results of these studies shall be considered as fundamental criteria for
the implementation of these activities.
4 Governments shall take measures, in co-operation with the peoples
concerned, to protect and preserve the environment of the territories
they inhabit.
Article 8
1 In applying national laws and regulations to the peoples concerned, due
regard shall be had to their customs or customary laws.
2 These peoples shall have the right to retain their own customs and
institutions, where these are not incompatible with fundamental rights defined
by the national legal system and with internationally recognised human rights.
Procedures shall be established, whenever necessary, to resolve conflicts which
may arise in the application of this principle.
3 The application of paragraphs 1 and 2 of this Article shall not prevent
members of these peoples from exercising the rights granted to all citizens and
from assuming the corresponding duties.
Article 13
1 In applying the provisions of this Part of the Convention governments shall
respect the special importance for the cultures and spiritual values of the
peoples concerned of their relationship with the lands or territories, or both
as applicable, which they occupy or otherwise use, and in particular the
collective aspects of this relationship.
2 The use of the term `lands' in Articles 15 and 16 shall include the concept
of territories, which covers the total environment of the areas which the
peoples concerned occupy or otherwise use.
Article 14
1 The rights of ownership and possession of the peoples concerned over the
lands which they traditionally occupy shall be recognised. In addition,
measures shall be taken in appropriate cases to safeguard the right of the
peoples concerned to use lands not exclusively occupied by them, but to which
they have traditionally had access for their subsistence and traditional
activities. Particular attention shall be paid to the situation of nomadic
peoples and shifting cultivators in this respect.
2 Governments shall take steps as necessary to identify the lands which the
peoples concerned traditionally occupy, and to guarantee effective protection
of their rights of ownership and possession.
3 Adequate procedures shall be established within the national legal system to
resolve land claims by the peoples concerned.
Article 15
1 The rights of the peoples concerned to the natural resources pertaining to
their lands shall be specially safeguarded. These rights include the right of
these peoples to participate in the use, management and conservation of these
resources.
2 In cases in which the State retains the ownership of mineral or sub-surface
resources or rights to other resources pertaining to lands, governments shall
establish or maintain procedures through which they shall consult these
peoples, with a view to ascertaining whether and to what degree their interests
would be prejudiced, before undertaking or permitting any programmes for the
exploration or exploitation of such resources pertaining to their lands. The
peoples concerned shall wherever possible participate in the benefits of such
activities, and shall receive fair compensation for any damages which they may
sustain as a result of such activities.
The Draft Declaration on the Rights of Indigenous Peoples has not
yet been adopted by the General Assembly. It was developed over a number of
years by the UN Working Group on Indigenous Populations (WGIP) in full
consultation with Indigenous peoples from around the world. It can fairly be
claimed as the most coherent and comprehensive articulation of the aspirations
of the world's Indigenous peoples. In 1994 the draft was adopted by the WGIP's
parent body, the Sub-Commission on Prevention of Discrimination and Protection
of Minorities, and referred `up the line' to the Commission on Human Rights.
The Commission established its own open-ended working group to consider the
Draft Declaration.[21]
Provisions which relate directly to this Project include:
Article 3
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.
Article 4
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.
Article 8
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 recognised as such.
Article 10
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.
Article 12
Indigenous peoples have the right to practise and revitalise 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, artefacts, 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.
Article 13
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
Article 14
Indigenous peoples have the right to revitalise, 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.
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.
Article 20
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.
Article 21
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.
Article 23
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.
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.
Article 28
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.
Article 30
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, utilisation 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.
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
nonmembers, 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.
Article 33
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 recognised human
rights standards.
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 recognised herein shall be adopted and included in
national legislation in such a manner that indigenous peoples can avail
themselves of such rights in practice.
Article 39
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.
Within the body of `hard law' represented by international treaty obligations
accepted by Australia, there is sufficient basis for requiring governments to
deal with Indigenous peoples in making decisions which affect their territories
and their cultures. Those requirements should be, at least, equal to
national legal requirements which relate to non-Indigenous peoples, and should
go beyond those standards in order properly to respect the intense cultural
relationship that Indigenous peoples have with their territories.
Such Government dealings with Indigenous peoples in respect of activities which
affect their lands should at the very least, involve their effective
participation and may well require their informed consent. Furthermore,
participation and cultural rights require that proper respect be paid by
Governments to Indigenous peoples' authority structures and their
decision-making processes.
The challenge is to establish governance structures for an `interface' between
governments and Indigenous peoples which can produce effective decisions, in
non-Indigenous terms and, at the same time, accord as closely as possible with
Indigenous structures and processes.
[1] See Discussion Paper 1 Introduction:
Overview of the Project UNSW Sydney 1998.
[2] See, eg, Koowarta v Bjelke-Petersen
(1982) 153 CLR 168 per Stephen J at 220-21.
[3] `I believe that to deny to Aborigines the
right to prevent mining on their land is to deny the reality of their land
rights': Aboriginal Land Rights Commission Second Report Government
Printer of Australia Canberra 1975 para 568. In consequence, strong controls
over mining on Aboriginal land were written into the Aboriginal Land Rights
(Northern Territory) Act 1976 (Cth). Inquiries in several other States led
to land rights legislation which also vested significant control over
development on Aboriginal and Torres Strait Islander lands.
[4] Minority Schools in Albania (1935) PC
IJ Ser A/B No 64.
[5] South West Africa Case (Second Phase)
[1966] 1 CJ Rep 6. See also: Francesco Capotorti Study on the Rights of
Persons Belonging to Ethnic, Religious and Linguistic Minorities (1977);
Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious or Linguistic Minorities (1992); General Comment (1995) of the
Human Rights Committee on Article 27 of the ICCPR; 1996 General Recommendation
XXI (48) of the Committee on the Elimination of Racial Discrimination on the
internal aspect of the right of self-determination. For a more extended
discussion see S Pritchard "Native Title in an International Perspective"
in Paul Patton (ed) Sharing Country: Land Rights, Human Rights
and Reconciliation after Wik RIHSS University of Sydney 1997, 33-66.
[6] See generally Steiner and Alston
International Human Rights in Context Oxford University Press 1996,
118-148.
[7] Mabo (No 1) (1988) 166 CLR 186.
[8] (1995) 183 CLR 373.
[9] Set out in (1998) 3 Australian Indigenous
Law Reporter (AILR) 142-147.
[10] The UN Convention on the Rights of the
Child, ratified by Australia, contains parallel language specifically for
children, and extended so as to expressly include `persons of indigenous
origin' (Art 30).
[11] Kitok v Sweden (1988);
Ominayak v Canada (1990); Länsman v Finland
(1993).
[12] See (1997) 2 AILR 191-193.
[13] Set out in (1996) 1 AILR 133-140.
[14] See Compilation of Extracts of
Declarations and Programs of Action pertaining to Indigenous Peoples from
High-level United Nations Conferences (UN DOC E/CN4/Sub 2/AC4/1996/s Add 1).
[15] See (1997) 1 AILR 344-347.
[16] See (1997) 2 AILR 348-358.
[17] Extracts are set out in (1997) 2 AILR
358-360.
[18] See Principles and extracts in (1997) 2
AILR 460-463.
[19] See (1997) 2 AILR 463-467 for
extracts.
[20] The text is set out in (1996) 1 AILR
472-482.
[21] For the text of the Draft
Declaration see (1996) 1 AILR 132-140. For the text of the Commission's
resolution see (1996) 1 AILR 145-147.