15
Sep
07

UN Declaration and Aust Gvt response

The UN General Assembly recently adopted the UN Declaration on Rights of Indigenous Peoples

It is a non-binding document.  143 nation states voted in favour and 4 voted against: the United States, Australia, Canada and New Zealand.  11 countries abstained. 

The Declaration can be accessed here.   

My response is over the fold.

In practical terms, I fail to see how this non-binding document will influence Australian policy, particularly that Australia voted against it.  The lack of a capacity to implement was stated as a reason for the Australian Governments response (though there are many other non-binding instruments that Australian Gvt approved).  International law is largely determined by international norms, observed by the practices of nation states.  With strong democratic foundations, Australia has performed well in allowing free political expression and the protection of distinct Indigenous rights when compared to nation-States in the international sphere.  Many Indigenous leaders omit this fact. As individuals, many of these leaders have found personal prosperity due partly because of this fact. 

The Minister for Indigenous Affairs, Mal Brough, said that the Declaration ‘would provide rights to a group of people which would be to the exclusion of others’, and that ‘it’s outside what we as Australians believe to be fair’.  He repeated this in the Weekend Australian: ‘this puts one bunch of Australians in a privileged position over others. It does not recognise that all Australians should be the same under the law.’ 

Rights that are ‘the exclusion of others’ have applied since Australia was established, and rights that apply to Indigenous peoples at the ‘exclusion of others’ have been maintained during the Liberal/National Coalition’s tenure over the course of 11 years, of which Mr Brough belongs and serves a senior role.  If all Australians ‘should be the same under the law’, why hasn’t Mr Brough and his Gvt recognised this in Australian legislation?  The Coalition controls both houses.

Two reasons stated by Robert Hill, on behalf of the Australian Gvt, are:

  1. the Declarations reference to self-determination; and
  2. the Declarations emphasis of customary law above national law.

I will deal with both reasons seperately.

  •  SELF-DETERMINATION 

The Declaration refers to ‘self-determination’ in four instances.  The first reference [PP14] relates to consistency with International Covenants and is applicable, I suspect, in nation states without strong democratic foundations.  The third reference [Article 3] also applies in these situations.

The second reference states [PP15]:

Bearing in mind that nothing in this Declaration may be used to deny any peoples their right of self-determination, exercised in conformity with international law.

As stated, international law is largely determined by international norms, as observed the practices of nation-States.  In modern history no nation-State has been created in accordance with the aspirations of Indigenous peoples in a Western country, and I accept that as international law. 

However, Territories within a nation-State have been formed, including Nunavut in Canada.  The Indigenous peoples of Canada argued fervently that they did not support the creation of a nation-State, but aspired to a structure where political power over local affairs could be achieved in a spirit of co-existence.     

[Article 3 bis] of the Declaration reads: 

Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

Further [PP12] reads:

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.

I am not certain whether self-determination within the nation-State is a concern expressed by the Australian Government.  

In my view, the creation of a new Territory as an aspiration of Indigenous politics is unachievable, and distracts from core concerns. 

If it is to occur, then the aspiration should be made clear that at no stage in the future will the aspiration for the creation of a new nation-State be entertained.  Polarising such aspirations creates a minus-value debate in the public discourse.

  • CUSTOMARY LAW ABOVE NATIONAL LAW 

The Australian Government opposed the Declaration on a number of grounds, including the ground that it held customary law above national law.

A search of ‘customary’ revealed no results. 

Mal Brough argues [the Weekend Australian]:

The Declaration ‘places customary law in a superior position to national law,’ he said.

‘There should only be one law for all Australians and we should not enshrine in law practices that are not acceptable in the modern world.’

Mr Brough said he had anecdotal evidence that customary law was misused to justify sexual abuse, including the rape of boys during initiation rites.

The declaration’s land provisions would provide rights that could overrule the legal interests in land held by others, he said.

He also sought to use Labor’s support of the declaration as a political wedge, saying the Opposition could not support the NT intervention while also backing the declaration’s elevation of the importance of customary law.

‘Their position is totally opposed to everything they have supported in the parliament and everything they have said,’ Mr Brough said. ‘It beggars belief.’  

Notwithstanding the arguments relating to customary law and the ‘rape of boys during initiation rites’ (although Mr Brough says this is a misuse of customary law, which contradicts the basis of his argument), it is necessary to explore the core argument put by Mr Brough that signing the Declaration would place customary law in a superior position over national law. 

The Declaration refers to ‘children’ in several provisions.  These provisions relate to protecting the ability of Indigenous peoples to raise their children consistent with the rights of the child; the right against forcible removal in relation to transference amongst groups; protecting the rights to education; protecting rights against economic exploitation; recognising the specific rights of children and other vulnerable groups;   

[Article 22 bis] reads:

States shall take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination. 

I leave to readers to consider the moral implications of Mr Brough’s assertions. 

  • INDIGENOUS POLITICS

Having made these points, I’m disappointed the Declaration does not clarify a number of aspects relevant to the modern Indigenous political debate.  The content of Indigenous politics includes a variety of differing views.  Although the language of this document is carefully considered, I sense that the divergence of views expressed by some Indigenous leaders is not included, perhaps for political reasons within the Indigenous body politik, and how this feeds up the political heirarchy. 

If the Australian Gvt allowed expression of the divergence of Indigenous leaders views it would have found common ground with a section of Indigenous opinion, therefore validating the legitimate concerns. 

Instead, it chose the path of division.  

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1 Response to “UN Declaration and Aust Gvt response”


  1. 15 September 2007 at 3:43 pm

    Hi John,

    Firstly I disagree with you about…

    “Australia has performed well in allowing free political expression and the protection of distinct Indigenous rights when compared to nation-States in the international sphere.”

    Keeping in mind ATSIC has just been abolished and native title gutted, Australia is far behind its fellow dissenters N.Z., USA and Canada in recognising and institutionalising “distinct indigenous rights”. Australia was keeping pace under Hawke and Keating, but since then all indigenous rights have been extinguished.

    It is true that, especially since the 67 referendum, that Aboriginal people are equal under the law, but that is only in terms of “distinct British rights”, not idigenous rights. The racial discrimination laws say everyone has an equal right to exist within white frameworks but gives no recognition at all to “distinct indigenous rights”.

    Secondly, (not a disagreement),

    The reason Australia is opposing this declaration is the same as why they reject customary law – the two are the one issue, that of sovereignty.

    The foundation stone of British sovereignty in Australia was the legal principle of Terra Nullius which was extiguished in the high court’s Mabo decision. Native title legislation was created to cover up this contradiction but in common law and international law the contradiction still exists.

    When Denis Walker claimed “no jurisdiction” to criminal charges based on the illegitimate authority of the crown (and therefore the police and court) and took this position to the high court, the courts determination was that since the court’s authority is based in the crown, it cannot entertain any challenge to its own authority and jurisdiction and that that matter was one of international law, not the high court.

    Now there is a fluid nonspecific milleau that is international law and no real international forum to challenge the legitimacy of British occupation and sovereignty – until now.

    Customary law, which is the law and government of this land that existed well before Cook planted a flag on the beach, now has legal standing in international law – as vague as it is. There is a now a mechanism to revisit the question – not of the legitimacy of the crown, but the legitimacy of sovereign customary law, which by way of high court precedent may exist within crown law as common law.

    So the radical demands of an separate state cannot be achieved by the UN declaration, but property law in particular, but also family and ceremonial law now have a solid basis to go to the high court to establish common law rights.

    And this is where Brough and Howards claims of exclusive rights above and beyond others falls apart.

    As they say, possession is nine tenths of the law. Property law is all about exclusion. Freehold title or leasehold title or body corporate title all give the title holders exclusive rights to real estate above and beyond everybody else. Property law is essentially a law of exclusivity.

    Common law native title as determined by the High Court (not the parliament) is an exclusive right predating any other land title and requires either acknowledgement of that exclusivity or compensation for the removal of exclusive property rights.

    This is the legal conundrum the government is trying to avoid.


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