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Miller, Damien --- "Knowing Your Rights: Implications of the Critical Legal Studies Critique of Rights For Indigenous Australians" [1999] AUJlHRights 2; (1999) 5(1) Australian Journal of Human Rights 48

[*] Damien Miller D is a final year law student at UNSW and a member of the Gangalu clan of Central Queensland. I would like to thank Melinda Jones for her comments on an earlier draft of this paper.

[1] Dodson M, `Aboriginal and Torres Strait Islander People and Human Rights', speech delivered to Wollongong University, 7 September, 1993.

[2] Williams R, `Encounters on the frontiers of international human rights law: redefining \tthe terms of indigenous peoples' survival in the world' (1990) 4 Duke Law Journal 661 at 662.

[3] Aboriginal and Torres Strait Islander Social Justice Commissioner, Third Report 1995 AGPS, Canberra, 1995 p 60.

[4] See for example, Gawler J, Tracking your rights, 2nd ed, Human Rights and Equal Opportunity Commission, Sydney, 1997 reprint. See also Barker B, Getting Government to listen: A guide to the international human rights system for Indigenous Australians, Australian Youth Foundation, Sydney, 1997.

[5] Crenshaw K W, `Race, Reform and Retrenchment: Transformation and Legitimization in Anti Discrimination Law' (1988) 101 Harvard Law Review 1331, 1352-56. See Williams R `Taking Rights Aggressively: The Perils and Promises of CLS for People of Colour' (1987) 5:1 Law and Inequality 103.

[6] Crenshaw K W, above, 1355.

[7] Williams R, `Encounters on the frontiers of international human rights law: redefining the terms of indigenous peoples' survival in the world', (1990) 4 Duke Law Journal 661 at 662.

[8] Moses T, `Address to Plenary Session 2: Indigenous Self-Determination' in Australian Council for Aboriginal Reconciliation, Human Rights and Indigenous Australians: Proceedings of the Australian Reconciliation Convention, 26-28 May 1997(Book 3) (1997) p 20.

[9] Aboriginal Torres Strait Islander Social Justice Commissioner, First Report 1994, APGS, Canberra, 1994 1, 38.

[10] Professor Anaya, Special Council, Indian Law Resource Centre, regards the right of self-determination as a critical, distinct right of all indigenous peoples. Anaya asserts that the right of self determination, `is an extra-ordinary regulatory vehicle in the contemporary international system, broadly establishing rights for the benefit of all peoples, including indigenous peoples it enjoys the incidents and legacies of human encounter and interaction to conform with the essential idea that all are equally entitled to control their own destinies. Self determination especially opposes, both prospectively and retroactively, patterns of empire and conquest.' See Anaya SJ, `Address to Plenary Session 2: Indigenous self-determination' in Australian Council for Aboriginal Reconciliation, Human Rights and Indigenous Australians: Proceedings of the Australian Reconciliation Convention, \t26-28 May 1997,AGPS, Canberra 1997 pp 13, 18.

[11] Delgado R, `Storytelling for oppositionists and others: a plea for narrative' (1989) 87 Michigan Law Review 2411.

[12] Ibid.

[13] Responding to the perceived need to develop international standards which address the specific rights of indigenous peoples, between 1985 and 1994 the UN developed a Draft Declaration on the Rights of Indigenous Peoples. The Working Group on Indigenous Populations of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities sought, from its earliest meetings, to ensure direct indigenous participation in the process. As the Draft ascends through the levels of United Nations, the potential for indigenous influence will most likely be severely circumscribed. Despite these limitations, the Draft Declaration in its current form reflects the aspirations of indigenous people from around the world and lays the foundation for creating a space for indigenous `counter stories' in a positivist setting.

[14] Tushnet M `An Essay on Rights' (1984) 62Texas Law Review 1, at 386.

[15] Kennedy D & Klare KE, `A Bibliography of Critical Legal Studies' (1984) 2 Yale Law Journal 461. See also Kennedy D, `Toward an Historical Understanding of Legal Consciousness: The Case of Critical Legal Thought in America 1850 - 1940' in Spritzer S (ed), Research in Law and Sociology ,vol 3, JAI Press, Greenwich, 1980 pp 3-4. See Kennedy D, `Cost Benefit Analysis of Entitlement Problems : A Critique' (1981) 33 Stanford Law Review 387.

[16] Tushnet M, `Critical Legal Studies: A Political History' (1991) 5 Yale Law Journal 1515, 1516. Tushnet acknowledges the heterogeneity of the movement: `... critical legal studies can be understood as a political location notwithstanding the disagreement among participants in the movement'. (at 1517)

[17] Sparer J, `Fundamental human rights, legal entitlements and the social struggle: A friendly critique of the critical legal studies movement' (1984) 36 Stanford Law Review 509 at 574. See also Hutchinson A, and Monahan P, `Law, politics and the critical legal scholars: The unfolding drama of American Legal Thought' (1984) 36 Stanford Law Review 199-246.

[18] Hunt A, Explorations in Law and Society: Towards a Constitutive Theory of Law, Routledge, New York, 1993, p 222.

[19] Ibid p 236.

[20] See Tushnet M , `Critical Legal Studies: A Political History' (1991) 5 Yale Law Journal 1515 at 1517. Tushnet interprets this phrase to mean that once `one understands the moral, epistemological, and empirical assumptions embedded in any particular legal claim, one will see that those assumptions operate in the particular setting in which the legal claim is made to advance the interest of some identifiable political groupings.' (at 1517)

[21] Gabel P, `The phenomenology of rights consciousness and the pact of the withdrawn selves' (1984) 62 Texas Law Review 1563 at 1567.

[22] See Matsuda M, Lawrence C, Delgado R, Williams K, Crenshaw I, Words That Wound : Critical Race Theory, Assaultative Speech and the First Amendment, Westview Press, Boulder (1993) p 1.

[23] Gaze B and Jones M Law, Liberty and Australian Democracy, Law Book Company, Sydney (1990) p 9.

[24] Both Hobbes T in Leviathan (1641) and Locke J in Two Treaties on Government (1689) emphasis the state's integral role in the maintenance of the `social contract', a means of circumscribing state intervention into the hallowed realm of individual liberty. Mills on the other hand derives his theory of rights, not from an emotional perspective, but on utilitarian grounds. On rights, Mills and his followers assert that, `in the part which merely concerns himself (sic), his independence is, of right, absolute. Over himself, over his own body and mind the individual is sovereign ...' Mills JS `On Liberty, Chapter 1' in Gaze B and Jones M, Law Liberty and Australian Democracy, Law Book Company, Sydney (1990) p 7. Mills' notions of individual liberty governs the rights to conscience, opinion, speech, freedom to pursue our lives to suit our own character, and freedom of association. He concludes that, `no society in which these liberties are not, on the whole, respected is free, whatever may be its form of government; and none is completely free in which they do not exist absolute and unqualified': p 7. For Mills, liberty is causally linked to the idea of utilitarianism.

[25] Tushnet M `An Essay on Rights' (1984) 62 Texas Law Review, 1363.

[26] Ibid.

[27] Gabel P, `The phenomenology of rights consciousness and the pact of the withdrawn selves' (1984) 62 Texas Law Review 1563 at 1577.

[28] Tushnet M, as above, 1391.

[29] Graycar R and Morgan J, The Hidden Gender of the Law Federation Press, Sydney (1990) p 56.

[30] Petter A, `Canada's Charter Flight : Soaring backwards into the future' (1995)16 Journal of Law and Society 151 at 161.

[31] Frug G, `A Critical Theory of Law' (1989) 43 Legal Education Review 292.

[32] Marx K, On the Jewish Question (1845) p 44.

[33] Ibid 46.

[34] While the CLS movement sees some value in the acquisition of rights -- for example, as a means of energizing social movements -- the movement is adamant that the risks associated with their invocation outweigh their benefits. Rights are regarded as a subversive, state sanctioned mechanism aimed at pacifying political movements. See Kennedy D and Gabel P, `Roll over Beethoven' (1984) 36:1 Stanford Law Review 1 at 26-27, 33-34, 37.

[35] Ibid 35.

[36] Gabel P `The phenomenology of rights consciousness and the pact of the withdrawn selves' (1984) 62 Texas Law Review 1567.

[37] Tushnet M `An Essay on Rights' (1984) 62 Texas Law Review 1583.

[38] Altman A Critical Legal Studies: A Liberal Critique Princeton University Press, Princeton (1990) 1, 22.

[39] Smart C The Problem of Right: Feminism and the Power of Law Routledge, London (1989) \tp 140. Smart suggests that power differences cannot be resolved by the use of rights. While rights may empower the weak to some extent, abstract language cannot comprehend power relations, let alone change them. Rights language may draw attention to a particular situation or may have the opposite effect of having a disastrous effect on individuals. Rights simply exchange real problems of lack of water, housing and equal concern and respect for legal problems.

[40] This does not mean that political organization disappears completely, but legislation on particular questions can have unintended effects. The legalisation of politics means that numerous issues of concern to indigenous peoples, such as the protection and preservation of traditional lands, are increasingly seen as legal questions to be settled through litigation. Litigation is fraught with dangers. While, `the parties will get their legal rights, whatever they may be, which flow from the view of the facts and of the law which the courts find to be correct ... the difficulty in foretelling outcomes flows from uncertainty as to how the evidence will fall out and be viewed by the judge in a full scale confrontation, sometimes uncertainty as to the law or how it will be applied, and often uncertainty as to how long, expensive and stressful litigation will be.' See Wooten H, `Mediating between Aboriginal Communities and Industry' Speech delivered to the AIC Conference on Doing Business with Aboriginal Communities, Darwin, 27 February 1996 p 4. Litigation also potentially has a `chilling effect' by removing the opportunity for creative solutions to be canvassed, through negotiation and compromise with political figures. Indigenous peoples may regard resorting to litigation as the only source of justice.

[41] Tushnet M `An Essay on Rights', (1984) 62 Texas Law Review, 1386 at 1377.

[42] Ibid.

[43] Kennedy D and Gabel P, `Roll over Beethoven', (1984) 36:1 Stanford Law Review 1 at 34.

[44] Trubek D `Where the action is: critical legal studies and Empiricism' (1981)36 Stanford Law Review.

[45] Fiskin J `Justice, Equal Opportunity and the Family' in Tushnet M, `Rights -- An Essay in Informal Political Theory' (1989) 17 Politics and Society 390-405. Fiskin suggests that `the effort to move from grand abstractions of "a theory of human rights" to a specification of determinate, particularized rights cannot succeed.'

[46] Kairys D `Freedom of Speech' in Kairys D (ed), The Politics of Law: A Progressive Critique, Pantheon Books, New York (1982) pp 140-141. See Buckley v Valeo [1976] USSC 24; 424 U.S. 1 (1976) 180; Central Hudson Gas and Electric Corp. v Public Services Commission 447 U.S. (1980) 557, in which the court held that commercial freedom of speech can outweigh concerns for public awareness of the problems associated with a particular use of energy.

[47] Wright A Grog War Magabala Books, Broome (1997) p 101.

[48] Ibid p 93.

[49] Ibid pp 62-63.

[50] Ibid p 93.

[51] Tushnet M `Rights -- An Essay in Informal Political Theory' (1989) 17 Politics and Society 390-405.

[52] Olsen F `Liberal rights and Critical legal theory' in Joeges C and Trubek D (eds), Critical Legal Thought; An American - German Debate Nomos, Baden-Baden (1989) p 253.

[53] Trubek D `Where the action is: critical legal studies and Empiricism', (1981) 36 Stanford Law Review 1363.

[54] Pritchard S `The jurisprudence of human rights: Some critical thought and development in practice' (1995) 2:1 Australian Journal of Human Rights 1.

[55] Kennedy D `Critical Labor Law Theory : A comment' (1981) 4 Industrial Law Journal 503, 506.

[56] See the International Covenant on Civil and Political Rights (1966), the International Covenant on Economic, Social and Cultural Rights (1988 and the Universal Declaration of Human Rights (1948). The French and Japanese governments have also maintained that at international law, there is no such thing as collective rights and that the protection and promotion of individual rights and freedoms should be the ultimate concern of the UN human rights system. See `Government Statements' at the Commission on Human Rights Working Group on the Draft Declaration on the Rights of the World's Indigenous Peoples, Session 2, 1996.

[57] Tushnet M `Rights -- An Essay in Informal Political Theory' (1989) 17 Politics and Society 409.

[58] Pritchard S, as above, 45.

[59] Tushnet M 'An Essay on Rights' (1984) 62 Texas Law Review 1364.

[60] Ibid 1371.

[61] Ibid 1371.

[62] Kennedy D and Gabel P, `Roll Over Beethoven' (1984) 36:1 Standford Law Review 1 at 33.

[63] Smart C Feminism and the Power of Law Routledge, London (1989) p 143.

[64] Kennedy D and Gabel P, as above.

[65] Gabel P `The phenomenology of rights consciousness and the pact of the withdrawn selves' (1984) 62 Texas Law Review 1563 at 1590.

[66] Gabel P and Harris P `Building power and breaking images: critical legal theory and the practice of law' (1982-83) New York Review of Law and Social Change 369, 375-6.

[67] Pritchard S `The Jurisprudence of Human Rights: Some critical thought and development in practice' [1995] AUJlHRights 1; (1995) 2(1) Australian Journal of Human Rights 1 at 10.

[68] Williams P `Alchemical notes: reconstructing ideals from deconstructed rights' (1987) 22.

Harvard Civil Rights - Civil Liberties Law Review 304, 401, 431. See also Williams P, `The pain of word bondage' in Williams P (ed) The Alchemy of Race and Rights Harvard University Press, Cambridge (1993) pp 47-159.

[69] Gabel P and Kennedy D `Roll Over Beethoven' (1984) 36:1 Stanford Law Review 1 at 15.

[70] Fudge J and Glasbeek H `The politics of rights: a politics with little class' (1992) 1 Social and Legal Studies 45, 50.

[71] San Antonio Independent School District v Rodriguez [1973] USSC 83; 411 US 1 (1973) in Tushnet M, `An Essay on Rights' (1984) 62 Texas Law Review 1363 at1380.

[72] Fudge J `The effect of entrenching a Bill of Rights upon political discourse: Feminist demands and sexual violence in Canada' (1989) 17 International Journal of the Sociology of Law 445.

[73] Pritchard S `The Jurisprudence of Human Rights: some critical thought and development in practice' (1995) 2:1 Australian Journal of Human Rights 1 at 12-15.

[74] Tushnet M `Rights: An essay in informal political theory' (1989) 17 Politics and Society 413-15. Tushnet refers to a 1967 study undertaken by Luker K which highlights the tendency for increased support for `pro-life' organisations after the celebrated legal victories of pro-choice advocates.

[75] Williams P `Alchemical Notes: reconstructing ideals from deconstructed rights' (1987) 22 Harvard Civil Rights -- Civil Liberties Law Review 1.

[76] Ibid 93.

[77] Ibid.

[78] Hunt A Explorations in Law and Society: Towards a Constitutive Theory of Law Routledge, New York (1993) 228. See Trubek D, `Where the action is: critical legal studies and Empiricism' (1981) 36 Stanford Law Review 576.

[79] Aboriginal and Torres Strait Islander Commissioner, Third Report 1995 , AGPS, Canberra (1995) p 1, 43.

[80] International human rights law advances the rights of indigenous peoples, principally by establishing standards against which governments actions may be gauged. For example, the United Nations Working Group Convention on Biological Diversity sets minimum standards with respect to the protection of indigenous peoples' intellectual property rights, see Articles 8(j) and 10(c).

[81] Williams P `The Pain of Word Bondage' in Williams P (ed) The Alchemy of Race and Rights, Harvard University Press, Cambridge (1991) p 153.

[82] Minow M `Interpreting rights: an essay for Robert Cover' (1987) 96 Yale Law Journal 1860, 1910.

[83] Ibid.

[84] In terms of the indigenous struggle for land rights, reliance on legal gains is but one element of an overall strategy for securing social justice. Indigenous groups frequently speak of the need to establish a social movement committed to advancing the issues of reconciliation and social justice.

[85] Schneider EM, `The dialectics of rights and politics: perspectives from the women's movement' (1986) 61 New York University Law Review 589.

[86] Views of the Human Rights Committee under Article 5, paragraph 4 of the Optional Protocol to the ICCPR - Fiftieth Session, Concerning Communication No. 488/1992. In CCPR/C/50/D/488/1992 on 31 March 1994, at para 2.4.

[87] Lavarch M `Why Canberra listens to UN wisdom on human rights' The Australian, \t12 April 1994.

[88] Williams P `The pain of word bondage' in Williams P (ed) The Alchemy of Race and Rights, Harvard University Press, Cambridge (1991) p 148.

[89] Matsuda M, `Voices of America: accent, anti-discrimination law and a jurisprudence for the last reconstruction' (1990) 100 Yale Law Journal 1329.

[90] Delagado R, `The ethereal scholar: Does CLS have what minorities want? (1987) 722 Harvard Civil Rights - Civil Liberties Law Review 301, 304.

[91] See the Bangkok NGO Declaration on Human Rights, 29 March 1993 which records the views of some 110 human rights organisations representing some 26 Asian Pacific countries.

[92] Pritchard S `The jurisprudence of human rights: Some critical thought and development in practice' [1995] AUJlHRights 1; (1995) 2(1) AJHR 1, 21.

[93] Wright A Grog War, Magabala Books, Broome (1997) p 151.

[94] Ibid p 149.

[95] Smart C, The Problem of Right: Feminism and the Power of Law Routledge, London (1989) p 1.

[96] Wright A, as above p 152.

[97] Ibid p 153.

[98] Worcester v Georgia 31 US 53O (1832).

[99] Williams P `The pain of word bondage' in Williams P (ed) The Alchemy of Race and Rights, Harvard University Press, Cambridge (1991) p 158.

[100] Ibid p 162.

[101] Ibid p 163.

[102] Dworkin R Laws Empire Harvard University Press, Cambridge (1986) p 440-4.

[103] Dworkin R `Taking rights seriously' in Gaze B and Jones M, Law, Liberty and Australian Democracy, Law Book Company, Sydney (1990) p 11.

[104] Ibid p 15.

[105] Aboriginal and Torres Strait Islander Social Justice Commissioner: Third Report 1995 AGPS Canberra (1995) p 44.

[106] See the Vienna Declaration adopted by the Second World Conference on Human Rights, Sec 1, para 5. Set forth in (1993) 14 Human Rights Law Journal 370.

[107] Dodson M `Indigenous rights and economic rationalism: dispelling some myths' Address to Australian Council of Social Services (1993)1, 4-5.

[108] See for example Article 1(4) of the United Nations Convention on the Elimination of All Forms of Racial Discrimination.

[109] Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 133 per Brennan J.

[110] General Comments 23 (1994) para 6.2. Compilation of General Comments and General Records adopted by Human Rights Treaty Bodies, UN Doc HRI /Gen/I/Rev 1 (1994) 1, 40.

[111] Resolutions and decisions adopted by the Commission at its 51st session, resolution 32, E/CN.4/L.11/Add.2, 3 March 1995. The `draft declaration' referred for consideration is the draft as prepared by the Working Group on Indigenous Populations in 1993. See UN Doc E/CN/4/Sub2/2B. Aboriginal and Torres Strait Islander Social Justice Commissioner: Third Report 1995, AGPS, Canberra (1995) 92.

[112] The Working Group on Indigenous Populations seeks to recognise `the distinct international

legal personality which indigenous peoples continue to possess and their equality under international law with other peoples, even where they have agreed to be incorporated into existing states'. Daes E `The United Nations Draft Declaration on the Rights of the Worlds Indigenous Peoples: current developments' Address to ATSIC seminar April 1995 in HREOC, Racial Discrimination Act 1975 A Review, AGPS, Canberra (1995) p 206-207.

[113] Aboriginal and Torres Strait Islander Social Justice Commissioner, as above p 87.

[114] Ibid p 93.

[115] Human Rights and Equal Opportunity Commission, Tracking Your Rights Package.

[116] Ibid.

[117] Queensland Anti-Discrimination Commission, `Balancing the Act: The newsletter of the ADCQ' (1997) 1: September 1, 2.

[118] Hunt A, Explorations in Law and Society: Towards a Constitutive Theory of Law, Routledge, New York (1993) p 630.

[119] Williams P `Alchemical notes: reconstructing ideals from deconstructed rights' (1987) Harvard Civil Rights -- Civil Liberties Law Review 435.