The Declaration on the Rights of Indigenous Peoples – The Mid Week Review

By Vaughn Rogers
Aboriginal Flag Puzzle Piece

By Vaughn Rogers

The Declaration on the Rights of Indigenous Peoples (the Declaration) was adopted by the United Nations General Assembly on 13 September 2007. Australia, along with the United States, Canada, New Zealand and the United Kingdom, opposed the Declaration at the time of its adoption, but Australia subsequently endorsed it in April 2009.

However, official endorsement or ratification of international documents doesn’t necessarily translate into state practice. As such, on Friday 21 September 2012, the Castan Centre held a Symposium on Australia’s Implementation of the Declaration. The Symposium’s purpose was to begin a dialogue about the various ways in which the Declaration is or is not being implemented at federal, state and community levels.

The Welcome to Country was given by Georgina Nicholson, a Wurundjeri elder, setting the scene for the entire event. Her yarn introduced the importance of Indigenous history and familial and community engagement in rights discourse – in Australia and beyond.

The Symposium’s three speakers were Matthew Storey, CEO of Native Title Services Victoria Ltd, Dr Mark McMillan, Senior Lecturer in Law at Melbourne Law School, and Dr Kerry Arabena, Professor and Director of Indigenous Health Research in the School for Indigenous Health at Monash University.

The Welcome to Country was given by Georgina Nicholson, a Wurundjeri elder, setting the scene for the entire event. Her yarn introduced the importance of Indigenous history and familial and community engagement in rights discourse – in Australia and beyond. As McMillan would later muse, the fact that this Welcome to Country constituted such an essential part of the proceedings is indicative of the fact that the Declaration is being effectively implemented in Australia, at the level of discourse.

Matthew Story: ‘The Declaration and implementing Indigenous Land Justice’

Storey’s paper contained the most direct engagement with the letter of the law itself. This was informed by his career as a property lawyer interested in Indigenous land rights. The scope of Storey’s presentation was to identify areas of the Native Title Act 1993 (Cth) (the Act) that are compatible with the Declaration and those areas in which the legislation falls short.

Storey focussed on four main points of (in)consistency: The provisions in art 32 of the Declaration and the Future Acts regime in Division Three of the Act; the concept of cultural revitalisation, which is suggested in arts 11 and 13, in the context of establishing a traditional connection with the land; a consideration of the practicalities of Indigenous governance; and an interpretation of the key land rights provisions contained in arts 26–8.

… the National Native Title Tribunal can approve a claim without consent, and as such, the Future Acts regime fails to live up to the Declaration’s requirement for “free and informed consent”.

Storey demonstrated – through a close reading of the language contained in the Declaration and the Act – that the emphasis on “free and informed consent” is a key concept used throughout the Declaration. However, the Future Acts regime in the Act can be summarised as an establishment of procedures which do not mandate an engagement with Native Title holders, and are also not subject to administrative law requirements – such as adequate notification and an opportunity to comment and consult. Indeed, the National Native Title Tribunal can approve a claim without consent, and as such, the Future Acts regime fails to live up to the Declaration’s requirement for “free and informed consent”.

In short, Storey demonstrated that land justice reforms have failed til now, but that an implementation of the Declaration and careful coordination and dialogue between PBCs and ILCs may provide the key to redressing this crucial lack in Indigenous land rights.

Secondly, Storey drew out the Declaration’s impetus for cultural revitalisation, as suggested by arts 11 and 13. However, these sections of the Declaration fall short of extending to Indigenous land rights, as it still requires an evidential establishment of connection, which leaves the onus of proof with the claimant.

Thirdly, Storey considered the practicalities of Indigenous governance, as mentioned in art 18 of the Declaration. Land rights are currently asserted via Proscribed Body Corporates (PBCs). The implementation of Indigenous governance and claims to Native Title, he said, may be problematic even if there is no legal obstacle in the context of disputes within the PBCs. Storey suggested that traditional decision-making processes of the PBCs, such as the determination of the identity of elders and traditional decision-making processes, may offend Western notions of democracy.

In short, Storey demonstrated that land justice reforms have failed til now, but that an implementation of the Declaration and careful coordination and dialogue between PBCs and ILCs may provide the key to redressing this crucial lack in Indigenous land rights.

Further, if there is no consensus from within the PBCs, then the Federal Court is still the final arbiter of any conflict, and the decisions affecting the constitution of PBCs can be made outside of any form of Indigenous governance. Thus, there are practical concerns about the efficacy of the implementation of a space for Indigenous governance under the current system of conflict resolution.

Finally, Storey began an interpretation of the key land rights provisions contained in arts
26–8, as they pertain to compensation for Native Title claims. He suggested that Indigenous Land Corporations (ILCs) serve a purpose under the Act in that they attempt to implement art 28. Article 28 (which provides the right to redress, restitution, and fair and equitable compensation) demonstrates a clarification of the rights in arts 26 and 27, and Storey suggested that it is the key to pursuing Indigenous land justice. Articles 26–28 represent a fair and independent, but non-Indigenous method of adjudication.

Storey proposed that a careful linking of these provisions into Indigenous governance via PBCs and ILCs is the way forward. The purpose of which is to fill the hole in the pre-1975 (before the introduction of the Racial Discrimination Act 1975 (Cth)) scheme of the Act.

In short, Storey demonstrated that land justice reforms have failed til now, but that an implementation of the Declaration and careful coordination and dialogue between PBCs and ILCs may provide the key to redressing this crucial lack in Indigenous land rights.

Dr Mark McMillan: ‘Sesame Street once asked: Which one of these things looks just like the other?: Indigenous Nation Building and Self-Determination as understood by Australia’s Indigenous Nations’

McMillan emphasised the crafting of the Declaration itself as an important part of the world’s Indigenous populations’ engagement with rights discourse. For example, the 1982 Working Group on the draft document was made up of a large number of Indigenous Peoples, and their involvement had a direct effect on the language and purpose of the Declaration. After Australia withdrew its support for the Declaration, it was these Indigenous groups that lobbied for – and managed to push through – the draft document into the final planning stages.

This engagement, emphasised by McMillan, demonstrates the reason that Indigenous people are so aware of the Declaration and its rights discourse – because they are in it.

McMillan contended that one of the main reasons for the strong international Indigenous engagement with the Declaration is because, post 2001, nation-states were in a “pull-back mode”, rather than showing interest in rolling forward implementation of collective human rights.

… McMillan’s presentation highlighted the ways in which Indigenous people –acting as nations – are giving practical meaning to the terms contained in the Declaration, and are having a positive and progressive engagement with Indigenous rights discourse.

Self-determination, as inscribed in art 1 of the International Covenant on Civil and Political Rights, has been interpreted by states as referring only to individuals. Thus, self-determination extends to neither collectivity nor Indigeniety.

McMillan contended that there needs to be a wider dialogue about rights, which must come out of the enterprise of Indigenous nation-building; economic prosperity comes from the cultural legitimacy of these native nations through their involvement with rights discourse.

Internationally, McMillan identified the trend towards Indigenous nations moving away from corporate models of implementing the Declaration and pursuing self-determination in the context of native nation-building. In Australia, native nations are specifically using the terms in the Declaration – of “self-determination” and “political” – to lobby as Indigenous nations and political institutions in order to challenge the individualistic conception of rights held by states. McMillan identifies Australian Indigenous elders (such as Aunty Flo Grant) as being particularly impressed by the use of the language contained in the Declaration to pursue rights for Indigenous communities as nations.

Ultimately, McMillan’s presentation highlighted the ways in which Indigenous people –acting as nations – are giving practical meaning to the terms contained in the Declaration, and are having a positive and progressive engagement with Indigenous rights discourse.

Dr Kerry Arabena: ‘Reform, Recognition and the Rights of Indigenous Australians’

Arabena provided a non-legal perspective on the issue of Indigenous rights, considering the possibility of constitutional recognition of Indigenous Peoples, rather than engaging with the Declaration directly.

Arabena put forward the intention of deconstructing or providing an intervention in the way we think about the issue of Aboriginal and Torres Strait Islander discourse. She proposed that this intervention take place on three levels:

  1. By examining current discourse;
  2. By identifying a campaign in which everyone is considered “precious”; and
  3. Creating a new discourse such that there is a better-informed populous, with more knowledge about the past, present and future impacts of labelling Australia as Terra Nullius, and the subsequent imposition of Western ideas of Indigineity on Indigenous people and their own conception of “self”.

Arabena conceived of the current discursive frame surrounding constitutional change as having four key vocabularies:

  1. Human Rights (“the nature of the problem”);
  2. Advancing Reconciliation (“not us or the other”);
  3. Achieving National Maturity (“control and responsibility”); and
  4. Sovereignty (“capacity and competence”).

This way of thinking about the nature of constitutional change does not, for Arabena, constitute a mode of engagement that seeks to recognise and reconcile violence that has, is and will be perpetrated against Indigenous populations. As such, she called for a new discourse that informs a program of education that is based upon Truth, Justice and Mercy. This program of education would enshrine new ways of conceptualising constitutional reform, resulting in a new discursive framework which evokes “the preciousness of each person”, “deep respect”, “accountability through justice and mercy”, and a message that is “true for all cultures”, not one based on moral principles.

This program of education must necessarily take place beyond a simple reliance on the law. Rather, a dialogue is essential – as each voice is incomplete without the other having been heard, too.  In this context of the necessity for dialogue, Arabena further stressed the importance of Indigenous nation-building  as an exercise that allows for a space in which self-determination and  sovereignty can be practised, which  allows the nation to hear the preciousness of  all voices.

Arabena made it clear that the law has a role in making this space available in language itself, but that it must be accompanied by the hundreds of other professions which also have a role in engaging with a dialogue of preciousness, truth, justice and mercy.

Nation-building and an intervention into rights-discourse itself was lastly emphasised as being based on story-telling; it is incumbent upon every member of society to engage with this story-building exercise if we are to challenge the current discourse and ultimately change the Constitution so that it does not allow for the control of any race of people.

Conclusion

All three speakers engaged with the law under very different auspices. Nevertheless, three key concepts emerged from the Symposium. Nicholson’s Welcome to Country evoked from the beginning the importance of story-telling in conceptions of self, and the three speakers each engaged in this process. Further, the notion of a dialogue as necessary for the implementation – and fundamental in the conception of – the Declaration, cut across all speakers. And Indigenous nation-building was also crucial as a rights discourse, as a precursor to an economically stable and political community of Indigenous people.

Five years on from the Declaration, this Symposium achieved two things. It demonstrated the long history of engagement by Indigenous Australians with rights discourse at the level of the law, and it also throws a radical challenge to both the law and the people of Australia. Will we engage in a cross-cultural and multidisciplinary dialogue which creates a space in rights discourse for Indigenous nation-building and the enshrinement of sovereignty and self-determination, or not?

The way we choose to answer this call has the potential to impact on the efficacy of the Declaration, as well as the possibility for challenging the Constitution, which – as it stands – is radically opposed to the preciousness and democratic entitlements of this country’s Indigenous peoples.

To listen to an audio recording of Matthew Storey’s presentation, click here.

To listen to an audio recording of Dr Mark McMillan’s presentation, click here.

To listen to an audio recording of Dr Kerry Arabena’s presentation, click here.

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