La leyenda de Quetzalcoatl. Diego Rivera. Palacio Nacional México D.F.

       
 


       por Dra. Teodora ZAMUDIO

  

An Australian perspective on self-determination

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Self-determination and effective participation 'within the life of the nation'?

And so, we pledge ourselves to stop injustice, overcome disadvantage, and respect that Aboriginal and Torres Strait Islander peoples have the right to self-determination within the life of the nation.

Australian Declaration towards Reconciliation, Council for Aboriginal Reconciliation (2000)

Introduction

1. Self-determination does not amount to a right to secession

2. Examples of Indigenous peoples' assertion of self-determination in Australia demonstrates the unreality of government fears about self-determination

3. The importance of self-determination for the full and effective participation of Indigenous peoples in Australian society

Conclusion

 

 

Introduction 

In the year 2000, the Council for Aboriginal Reconciliation released its final documents after ten years deliberations. The Council was established by law, for a period of ten years, and comprised Indigenous and non-Indigenous peoples from across Australia. Its task was to recommend actions for the achievement of reconciliation in Australia with Indigenous peoples. The Council released its Australian Declaration Towards Reconciliation and 4 national strategies for reconciliation in May 2000. It then released its final report for reconciliation, including 5 recommendations for national action, in December 2000.

Without doubt the most controversial aspect of the debate on reconciliation in Australia has been over the implications of the right to self-determination. There are widely differing views on the relevance of self-determination to the reconciliation process.

For Indigenous people, self-determination is viewed as essential for the full realization of all other human rights. But for the government, and many non-Indigenous people, it is considered unacceptable for reconciliation to involve recognition of Indigenous people's self-determination. The government's reworded version of the Australian declaration towards reconciliation, for example, replaces the phrase 'And so, we pledge ourselves to stop injustice, overcome disadvantage, and respect that Aboriginal and Torres Strait Islander peoples have the right to self-determination within the life of the nation' with 'And so, we pledge ourselves to stop injustice, overcome disadvantage and respect the right of Aboriginal and Torres Strait Islander peoples, along with all Australians, to determine their own destiny'[1]

Self-determination is viewed as a threat to national unity that, if realized, could lead to the establishment of 'separate rights' or in the extreme view, in the secession of Indigenous people from Australia. The government of Australia conceives of self-determination as 'merely an end in itself' rather than a process which has at its end the goal of social and economic equality[2] Others argue that the right to self-determination simply does not apply to Indigenous peoples.

The assertion that Indigenous people do not have a right to self-determination must be rejected outright. It is not a matter of theoretical debate whether Indigenous people have a right to self-determination, but a matter of practical reality. Recent practice by the United Nations Human Rights Committee and Committee on Economic, Social and Cultural Rights clearly envisage that self-determination is a right held by Indigenous peoples, including in Australia. This can be seen from the following recent jurisprudence of the committees.

  • Human Rights Committee (HRC): Concluding observations on Australia, UN Doc CCPR/CO/69/AUS, which states at para 10 that 'The State party should take the necessary steps in order to secure for the Indigenous inhabitants a stronger role in decision making over their traditional lands and natural resources (article 1, para 2)'. The List of Issues of the Committee (UN Doc: CCPR/C/69/L/AUS, 25/04/2000, Issue 4) had asked 'What is the policy of Australia in relation to the applicability to the Indigenous peoples in Australia of the right of self-determination of all peoples?'

  • HRC, Concluding Observations: Canada, Un Doc: CCPR/C/79/Add.105, 7/4/99, paras 7,8.

  • HRC, Concluding Observations: Norway, UN Doc: CCPR/C/79/Add.112, 05/11/99, paras 10 and 17, which provides (at para 17) that 'the Committee expects Norway to report on the Sami people's right to self-determination under Article 1 of the Covenant, including paragraph 2 of that article'.

  • Committee on Economic, Social and Cultural Rights (CESCR), List of Issues : Australia, UN Doc: E/C.12/Q/AUSTRAL/1, 23/05/2000, Issue 3: 'What are the issues relating to the rights of indigenous Australians to self-determination, and how have these issues impeded the full realization of their economic, social and cultural rights?'

  • CESCR, Concluding observations: Canada, UN Doc: E/C.12/1/Add.31, 10/12/98 (see also CESCR, List of issues: Canada, UN Doc: E/C.12/Q/CAN/1, 10 June 1998, Issue 23)

  • The HRC has also confirmed that Indigenous peoples have a right to self-determination in the following individual communications: Lubicon Lake Band v Canada (1990) Un Doc: CCPR/C/38/D/167/1984; and Marshall (Mikmaq Tribal Society) (1991) UN Doc: CCPR/C/43/D/205/1986.

Instead of denying the application of self-determination to Indigenous peoples, international debates have moved on and now focus on the content and meaning of self-determination, and particularly on whether it is limited in its application to 'internal' situations, i.e. within the fabric of existing states. This approach has been exemplified by the Council for Aboriginal Reconciliation's acknowledgement of Indigenous Australians' right to self-determination 'within the life of the nation'.

There are three aspects of the right to self-determination in an Australian context highlighted in this section:

  • Self-determination does not amount to a right of secession;

  • Examples of Indigenous peoples' assertion of self-determination in Australia demonstrates the unreality of government fears about secession; and

  • The importance of self-determination for the full and effective participation of Indigenous peoples in Australian society.

1. Self-determination does not amount to a right to secession  

Article 1 of the ICCPR and ICESCR states that self-determination is the right of all peoples to 'freely determine their political status and freely pursue their economic, social and cultural development'. In accordance with this right, 'All peoples may, for their own ends, freely dispose of their natural wealth and resources' and there is an obligation on the State that under no circumstances will they deprive a people 'of its own means of subsistence'. The State is obliged 'to promote the realization of the right to self-determination, and shall respect that right, in conformity with the Charter of the United Nations'.

The requirement that self-determination be realized 'in conformity with the Charter of the United Nations' effectively guarantees that the recognition of self-determination will not form the basis of secession of Indigenous peoples in colonial countries such as Australia. It is notable that this provision is also incorporated into the Draft Declaration on the Rights of Indigenous Peoples as Article 45 states that actions contrary to the Charter of the United Nations are not permitted. As Julie Debeljak notes:

There is a strong presumption against secession or independence flowing from the right of self-determination in the colonial setting. The United Nations is strenuously opposed to any attempt to disrupt territorial integrity. The principle of uti possedetis (the respect for colonial boundaries) is stated in the General Assembly Resolution on the Granting of Independence to Colonial Countries and Peoples[3]

The United Nations General Assembly Declaration of Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (1970) also states that the principle of self-determination should not: be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principles of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour[4]

As Erica Irene-Daes has commented on the Friendly Relations Declaration: The meaning of the aforesaid provisions is plain. Once an independent State has been established and recognized, its constituent peoples must try to express their aspirations through the national political system, and not through the creation of new States. This requirement continues unless the national political system becomes so exclusive and non-democratic that it no longer can be said to be 'representing the whole people'… Continued government representivity and accountability is… a condition for enduring enjoyment of the right of self-determination, and for continued application of the territorial integrity and national unity principles[5]

The United Nations human rights treaty committees have also confirmed this approach. The Committee on the Elimination of Racial Discrimination, in a general recommendation on the right to self-determination has emphasized that: In accordance with the declaration on friendly relations, none of the Committee's actions shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and possessing a government representing the whole people belonging to the territory, without distinction as to race, creed or colour. In the view of the Committee, international law has not recognized a general right of peoples unilaterally to declare secession from a State[6]

The Human Rights Committee has also confirmed that Article 27 of the ICCPR, though distinct from the right of self-determination, 'does not prejudice the sovereignty and territorial integrity of a State party' while also acknowledging that in some manifestations the rights of individuals protected under Article 27 - for example to enjoy a particular culture - 'may consist in a way of life which is closely associated with territory and use of its resources… This may particularly be true of members of Indigenous communities'[7]

The importance of Indigenous peoples' relationship to land has led Asjboern Eide, the Special Rapporteur on Minorities, to distinguish between 'territorial autonomy' and 'cultural autonomy' when discussing the importance of self-determination. While accepting that self-determination is limited by not challenging the territorial autonomy of nations, he expresses concern that self-determination should not be so limited that it prevents the expression of 'cultural autonomy' by particular groups, which he sees as 'vital to preserve cultures, and maintain group identity'. Such autonomy 'requires a considerable degree of self-management and control over land and other natural resources' and consequently will also require some degree of territorial control[8]

On this basis, concerns that the recognition of Indigenous people's right to self-determination will inevitably threaten the territorial integrity of Australia are misplaced, and misunderstand the meaning of self-determination that has evolved through the various processes of the United Nations structure over the past thirty years.

2. Examples of Indigenous peoples' assertion of self-determination in Australia demonstrates the unreality of government fears about self-determination 

The claim that is frequently made by the Australian government that self-determination will amount to the creation of separate states and secession also does not match with the current reality in Australia.

There are two brief examples that I wish to relay to you which highlight this. The first is the debate over statehood in the Northern Territory of Australia.

Our constitutional system is a federation of states, with full plenary power, and territories with more limited powers. For less than 40 years the Northern Territory has existed as a territory, prior to which it was included within the state of South Australia. For much of this time, the NT has expressed the desire to attain full statehood - a matter which would require agreement from the Commonwealth to conduct a referendum in the Territory.

Such a statehood referendum took place in October 1998, following an extensive process whereby a committee of the NT parliament considered the various options for statehood and drafted a proposed constitution. This constitution included a number of critical features for Indigenous people in the territory, including a bill of rights, mechanisms guaranteeing open government and providing for their full participation and recognition of their customary law and cultural practices.

However, the government of the day did not accept this constitution and replaced it with a proposal that did not provide such recognition to Indigenous peoples. As a consequence, the Indigenous peoples of the Northern Territory met at Kalkarinji in central Australia in August 1998 to determine a response to the statehood proposal.

The Kalkarinji statement of the Combined Aboriginal Nations of Central Australia that emerged withheld consent for the establishment of a new state until such time as the government entered into good faith negotiations with the freely chosen representatives of the Aboriginal nations and led to a constitution based on equality, co-existence and mutual respect.

At the referendum that followed two months later, 52% of Territorians voted no to statehood and defeated the proposal. The Combined Aboriginal Nations then met again at Batchelor in December 1998 to develop standards for constitutional development. The outcomes of this meeting and the one at Kalkarinji are known as the Indigenous Constitutional Strategy for the Northern Territory.

The Indigenous people of the Territory state that this strategy constitutes 'the Indigenous blueprint for constitutional development in the NT… (with) equal relevance for federal Constitutional development' . It includes:

  • The recognition of Aboriginal law through Aboriginal structures of law and governance;

  • Protection of the inherent right of Aboriginal peoples to self-determination in the new Constitution;

  • Continued recognition and protection of Indigenous rights to land and resources;

  • Processes to facilitate Aboriginal self-government, including direct funding arrangements with the federal government and the examination of options such as regional authorities, regional agreements and treaty arrangements;

  • Negotiation on control and delivery of services relating to essential services and infrastructure, health, education, law and justice, to ensure that they are culturally appropriate; and

  • Adequate protection of human rights.

This example provides an excellent illustration of the desires of Indigenous peoples in Australia. It demonstrates a clear desire for dramatic change to existing relationships with Indigenous people, yet importantly it does so within the context of the maintenance of the integrity of the territory's system of government and geography. It proposes what James Anaya has termed an 'Indigenous layer of federation'.

The importance of this in the Australian context is that Indigenous people in the NT constitute 28.5% of the total population. This compares with other states or territories where the largest proportion of Indigenous people is 2.5%. The Northern Territory is also a territory with a twenty year land rights regime which has provided Indigenous people with ownership of 80% of the coastline and over 50% of the territory; and a place where there has been a high level of retention, maintenance and practice of Aboriginal law, language and culture.

In short, it is one of the places in which desires for secession or a break from Australian systems of government would be most realistic on the basis of resource and land ownership and size of the population. And yet this is clearly not an aspiration that is expressed by the Indigenous peoples of the territory.

The second example is another place where Indigenous people have retained their traditional cultures and which geographically is regionally capable of an Indigenous form of government - this is the Torres Strait. The Torres Strait islands are to the north of Queensland, bordering with Papua in the Timor Sea. They can also be considered as the 'birthplace' of native title in Australia - with Eddie Koiki Mabo's historic claim over the island of Mer (or Murray Island) which first recognised Indigenous people's continued ownership of land and sea in Australian law taking place in the Torres Strait.

For over twenty years Torres Strait Islanders have been pushing for regional autonomy, through the establishment of a regional government that is inclusive of both Indigenous and non-Indigenous interests. This proposal is an expression of the will of the Indigenous peoples of the Torres Strait to control service delivery processes and provide modes of government that maintain the cultural integrity of Torres Strait Islanders.

As the chairman of the Torres Strait Regional Authority, Mr Terry Waia has stated: The vision which many Torres Strait Islanders have longed for has been for an autonomous Torres Strait Region… One reason that we want to have greater autonomy is because we want to be empowered to look after our own affairs. A second reason is we know that the man on the ground is in the best position to know what is needed. In the past, and even at present, we have some decisions made in Canberra or Brisbane which overlook our local needs and culture. Good governance means decisions being made by the right people at the right level and in the right place at the right time.

The federal government in Australia is largely supportive of this process, although the process continues to move slowly. As this process is negotiated with the Queensland state and Australian federal governments, the Torres Strait Regional Authority has also negotiated framework agreements for coordinated service delivery in health, education and other areas, as well as lodged a native title claim over the sea and waterways of the entire Torres Strait. These initiatives are in furtherance of this autonomy goal. The latter indicates the strong influence and centrality of cultural integrity to the process.

Again, the Indigenous peoples of a well defined geographic area with strong Indigenous cultures and systems are seeking to exercise their self-determination in ways that do not dismantle the Australian polity, but which ensure respect for culture and maximum and effective participation.

Overall, these and other examples highlight the deep dissatisfaction of Indigenous peoples in Australia with current processes and the lack of participation and facilitation which they provide Indigenous communities, against the backdrop of dramatically poor health, education, unemployment and crisis levels of crime and violence.

3. The importance of self-determination for the full and effective participation of Indigenous peoples in Australian society 

So should we be concerned by the proposal of the Council for Aboriginal Reconciliation to limit Indigenous self-determination in Australia to 'within the life of the nation'?

In my view, yes we should. Words that expressly confine self-determination to 'within the life of the nation' operate as a distraction that hide, and consequently may even diminish, the full scope of the transformation in relations between Indigenous and non-Indigenous people that is required in this country to turn around two hundred plus years of colonialism.

As the Aboriginal and Torres Strait Islander Commission stated in the Social Justice Package proposal, Recognition, rights and reform, self-determination should not be constrained within existing legal and political structures as such structures 'must be able to be changed to take account of Indigenous rights'[9] An approach that is limited to 'within the life of the nation' does not sufficiently acknowledge that it is necessary that societal structures be adapted to accommodate Indigenous aspirations and cultures.

This is the core of the right to self-determination. It is about achieving the full and effective participation of Indigenous peoples in Australian society on equal terms - not on the basis of 'sameness', but through the recognition of the cultural distinctiveness and diversity of Indigenous peoples. The historical treatment of Indigenous people has prevented us from participating fully in Australian society and has left us trapped in a disempowered position at the bottom of society.

Consequently, the recognition of the right to self-determination is a mechanism for re-empowering Indigenous peoples within society: the right of self-determination of Indigenous peoples should ordinarily be interpreted as their right to negotiate freely their status and representation in the State in which they live. This might best be described as a kind of 'belated State-building', through which Indigenous peoples are able to join with all the other peoples that make up the State on mutually-agreed and just terms, after many years of isolation and exclusion. This does not mean the assimilation of Indigenous individuals as citizens like all others, but the recognition and incorporation of distinct peoples in the fabric of the State, on agreed terms[10]

The examples provided above highlight that self-determination is about establishing equitable relationships in society. As such, it is a process and not a single event. This should not be something to be feared by the rest of Australian society or the international community. It is not about the creation of separate rights. It is about inclusive government, in which Indigenous people rightfully have a role in determining their priorities and destiny. As Madame Daes also states, the right of self-determination is the 'right to demand full democratic partnership' in society, and consequently: this means that the existing State has the duty to accommodate the aspirations of indigenous peoples through constitutional reforms designed to share power democratically. It also means that indigenous peoples have the duty to try to reach an agreement, in good faith, on sharing power within the existing State, and to exercise their right to self-determination by this means and other peaceful ways, to the extent possible[11]

It is for this reason that I find the automatic equation of self-determination with secession by some States as illogical. Self-determination requires States to enter into power sharing arrangements with Indigenous peoples, rather than for all power to reside in one or other of these partners. It is difficult to see how a process conducted in good faith through genuine negotiation and with the purposes of cultural recognition and equality in mind can have such a prescribed outcome as secession.

At the same time, such processes of renegotiation are still substantial in the level of institutional reform that they require and it is my view that limits to 'within the life of the nation' or to the concept of internal self-determination do not fully encapsulate this level of transformation.

International processes have been integral to setting the benchmarks for States to meet in their treatment of Indigenous peoples, and these benchmarks should not be set so low as within the context of current institutional arrangements and without recognition of the international legal personality of Indigenous peoples. In my view, Article 3 of the draft Declaration on the Rights of Indigenous Peoples - framed as it is in accordance with the provisions of the international bill of rights, constitutes the minimum acceptable expression of our right to self-determination.

Conclusion 

In Australia, government policies and programs adopt what I would term a 'crisis management' approach to Indigenous policy which feeds the inequality experienced by Indigenous Australians through paying for poor health, education, housing, employment status and so on. Despite record levels of expenditure, it does nothing more than manage the inequality that we experience as peoples. Clearly what is needed is an approach based in partnership and mutual respect which seeks to facilitate Indigenous participation on an equal basis, or to allow Indigenous peoples in the words of Madame Daes to 'live well'.

Nothing less than the recognition of our right to self-determination is needed to begin to remedy our current situation.

Last updated 5 February 2003.

 


NOTAS:


[1] Prime Minister of Australia, Reconciliation documents, Press release, 11 May 2000

[2] Rather, the vague and undefined concept of 'self-empowerment' is preferred, and is said to engender 'a greater sense of responsibility and independence' and to vary from self-determination 'in that it is a means to an end - ultimately social and economic equality - rather than merely an end in itself': Senator Herron, 9th Annual Joe and Enid Lyons Memorial Lecture, as quoted in Aboriginal and Torres Strait Islander Social Justice Commissioner, Social justice report 1999, HREOC Sydney 1999, pp19-20

[3] Debeljak, J, 'Barriers to the recognition of Indigenous peoples' human rights at the United Nations' (2000) 26 Monash University Law Review 159, p171

[4] United Nations General Assembly Resolution 2625 (XXV)

[5] Daes, E., Discrimination against Indigenous people - Explanatory note concerning the draft declaration on the rights of Indigenous peoples, UN Doc; E/CN.4/Sub.2/1993/26/Add.1, 19 July 1993, para 21. Note: this explanatory note is considered by most Indigenous organizations participating in the negotiations over the Draft Declaration on the Rights of Indigenous Peoples to succinctly state the Indigenous viewpoint, and form the basis of negotiations with governments: doCip, doCip Update, No. 32-33 - November 1999 / February 2000

[6] Committee on the Elimination of Racial Discrimination (CERD), General Recommendation XXI, Self-determination, in CERD, Compilation of general recommendations, Un Doc CERD/C/365, para 11

[7] Human Rights Committee, General comment 23, the rights of minorities (article 27), 08/04/94, para 3.2

[8] Eide, A. and Daes, E., Working paper on the relationship and distinction between the rights of persons belonging to minorities and those of Indigenous peoples, Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, UN Doc: E/CN.4/Sub.2/2000/10, 19 July 2000, para 15

[9] ATSIC, Recognition, rights and reform, ATSIC Canberra 1995, para 3.25

[10] Daes, E., Discrimination against Indigenous people - Explanatory note concerning the draft declaration on the rights of Indigenous peoples, op.cit, para 26

[11] ibid., para 25

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 Dra. Teodora ZAMUDIO