Simpson, Tony --- "Indigenous Rights - Finding a Voice at the UN" [1987] AboriginalLawB 48; (1987) 1(28) Aboriginal Law Bulletin 9

• Indigenous Rights – Finding A Voice At The Un
• Self-Determination
• Ilo Revision
• 1985 Draft Declaration
• Racial Discrimination

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Indigenous Rights – Finding a Voice at the UN

by Tony Simpson

The following article by Tony Simpson is a report on recent discussions held at Geneva, on the rights of Indigenous Peoples. The report focuses on discussions relating to self-determination, revision of the international Labour Organisation (ILO) Convention 107 (see [1987] AboriginalLB 7; 1(24)pg10) and racial discrimination. Tony Simpson went to Geneva as Legal Advisor to the Aboriginal delegation to the United Nations Working Group on Indigenous Peoples, and in relation to the revision process of the ILO Convention 107.

The importance and relevance of international activities relating to Indigenous Rights was highlighted this year at the successful United Nations Meeting of the Working Group on Indigenous Populations.

As in previous years, it was preceded by a preparatory meeting organised by Indigenous Groups. Members of Australian Aboriginal organisations, including NSWALC, NAILS and the Committee to Defend Black Rights assisted in the organisation and planning of the meeting, as well as actively participating.

The.preparatory meeting allows interested indigenous representatives to consider joint positions for presentation to the Working Group. It helps assist the growing number of newcomers to the international arena to gain an understanding of the intricate processes of international law.

The preparatory meeting was attended by up to 100 Indigenous peoples. It concentrated on four substantive areas.

1. A consideration of the content of the right of self-determination as it applies to Indigenous areas.

2. A critique of the procedure and direction of a revision of the International Labour Organisation Convention 107 (ILO - 107).

3. A consideration of the Australian Bicentenary.

4. A consideration of the celebration of colonialism in the Americas, 1992

Self-Determination

A spokesperson for the meeting told the Working Group that

"The most fundamental element of the right to self-determination is the freedom of choice on the part of indigenous Peoples. The relationship between Indigenous Peoples and States must be based on the free and Informed consent of indigenous Peoples.

Self-determination encompasses the 'freedom of Indigenous Peoples to determine the extent of and the institutions of their self-governance, their political status and associations with the State(s) in which they are located, and the extent and nature of their participation within the political processes of such State(s).

Self-determination is dependent upon the right of each Indigenous People to a land and resource base necessary to sustain an appropriate and sufficient economy as well as the right to exercise its authority and jurisdiction over the corresponding territory".

ILO Revision

Delia Lowe council member of the New South Wales Aboriginal Land Council, who was an active participant at the ILO committee of experts meeting in September 1986, briefed the gathering on the dangers of an inadequately revised ILO convention.

On behalf of the preparatory meeting she told the Working Group "Having examined the publication entitled, Partial Revision of Indigenous and Tribal Populations Conventions. 1957, the meeting unanimously concluded that the proposed revision is grossly inadequate and, in certain respects, threatening to the progressive elaboration and recognition of the rights of Indigenous Peoples. The meeting is particularly concerned about the following issues:

1. A number of the proposed articles are inconsistent with the exercise of the right of self-determination by Indigenous Peoples;

2. Although the term "integration" will be removed from the Convention, the instrument will continue to permit government integration programs;

3. Territorial and other rights' to land and resources are inadequately recognised and protected. The convention will continue to permit the unconsented dispossession of Indigenous Peoples from the land;

4. The ILO does not offer indigenous Peoples reasonable opportunities for effective consultation, participation and negotiation in the revision process, and for monitoring the implementation of the Convention."

1985 Draft Declaration

Following the endorsement of a few minor amendments, the preparatory meeting approved and reaffirmed the 1985 Declaration of Principles. Two new principles, which cover the right to be free from military conscription and rights relating to health, social services and housing were added to the original draft.

Racial Discrimination

Paul Coe, Chairman of NAILS, who had presented the 1985 Declaration on Indigenous Rights, spoke on the theme of Structural Racism and Racial Discrimination in the Australian Context. He said:

The most extreme manifestation of racism and racial discrimination occurs in situations where an invading power fails to recognise the legal, social, cultural and political integrity of the indigenous People, their institutions and their relationships to their territory. An example of this situation is the continual reliance by Australia on the discredited racist doctrine of terra nullius.

Mr Coe said:

the Australian Government conceded. last week, at the Working Group on Indigenous Populations, that no treaty had been negotiated or entered into with the original peoples and nations of the continent. This frank confession needs significant action before the fundamental institutionalised racism is purged from the relationship between Aboriginal and non-Aboriginal Australians.

Having said this, we remind the Australian Government that principles of international law apply to the treatymaking process.

The negotiations necessary to reach agreement on an appropriate treaty or compact must be under the auspices of the United Nations, otherwise the extreme inequality of bargaining power will lead to a result which grossly perpetuates the present situation. The original racist assertion of terra nullius has been perpetuated in Australia by the device of the 'act of State' doctrine, which has been used as a justification for the failure by the Australian courts to challenge the legality and applicability of the terra nullius doctrine. Furthermore, the Australian courts have refused to accept the validity of the International Court of Justice's condemnation of the terra nullius doctrine.

Mr Coe went on to reinforce the statement made earlier by Delia Lowe. He called on the Sub-Commission to encourage States to take active and immediate measures to combat racist theories used to justify thesubjugation of Indigenous Peoples, such as the doctrine of terra nullius. He also said all States should refrain from participating in or contributing to any celebrations which perpetuate or glorify such racist notions or the actions they purport to justify.

The Indigenous Working Group adopted seven new preliminary principles. The question of group rights was thoroughly discussed with a major contribution made by the expert from Yugoslavia, Mr Daniel Turk.

The issue of Aboriginal Deaths in Custody was effectively and powerfully raised by Helen Boyle in the Working Group. She said:

"Racism in South Africa is institutionalised by law. Thousands of Blacks have died fighting those laws. In Australia racism is also institutionalised by law. The official government imprisonment rate for Aboriginal people in Australia is 16 times the national average. In places such as Groote Eylandt in the Northern Territory it is the highest rate of imprisonment for a group of people throughout the world. This surely represents a systematised oppression and terror for our people."

Paul Coe said:

"The Working Group could consider monitoring the developments in Australia with a view to gaining an insight into the unprecedented spate of violence relating to persons in detention in Australia."