Aboriginal and Torres Strait Islander People and Citizenship
Speech by Michael Dodson, Aboriginal and Torres Strait Islander Social Justice Commissioner, at the Complex Notions of Civic Identity Conference, University of New South Wales, 20 August 1993
Introduction
It is the intention of this paper to explore the concept of citizenship, and some associated ideas in order to present a perspective on the relevance of citizenship to Aboriginal and Torres Strait Islander people. I will seek to examine some key principles in relation to citizenship which must be established in order to ensure full and just respect for the rights and aspirations of Aboriginal and Torres Strait Islander peoples.
Citizenship as it applies in the contemporary socio-political context implicitly contains reference to the concepts of nationhood, social organisation, and the structural relationship between peoples and the Nation State. For Aboriginal and Torres Strait Islander peoples, each of these terms, as they are currently applied in Australia, are fraught with problems, because they are largely built on assumptions which a priori exclude the claims of Aboriginal people to full political, social and cultural recognition as the first peoples of Australia.
I will state from the outset, that the broad framework I have adopted to discuss this issue stems from the proposition that as Aboriginal and Torres Strait Islander people, it may be suggested that we have two citizenships; one in relation to our indigenous nations, and one in relation to the Australian nation.
Thus, any discourse concerning Aboriginal and Torres Strait Islander people and citizenship must begin with two very simple, but crucially important questions. First of all, "Citizenship within which society?"; and secondly, "recognition by which political system?" From there you can move on to look at the rights and duties of citizens, and in particular the categories and types of rights which must be guaranteed in order to give full recognition to Aboriginal and Torres Strait Islander peoples.
Nations, colonisation and peoples; reassessing the status quo
There is a complex body of theory about the relationship between the civil society and political structures, just as there are diverse systems of domestic and international law and politics which institute particular models of socio-political organisation. However, today it is possible to look to almost any part of the globe to see a breakdown in those systems, and a demand from peoples for systems which will better meet their needs and aspirations. Not just in Australia, but internationally, Indigenous peoples constitute one of the main classes of peoples for whom the existing dominant models of political organisation are not only not working, but are themselves oppressive. It is thus of great importance to us that we take the time to explore new concepts and structures which will allow us to meet our needs and enjoy our rights, and even more than that, which will secure the survival of our peoples and cultures.
In the post-colonial world, there has been a significant shift away from arrangements where particular colonial powers had political authority over a number of distant territories. As decolonisation occurs, new nations and political structures are being formed in former colonies. The United Nations has taken an active role in ensuring that the process of decolonisation occurs smoothly, and that new states receive adequate support. Similarly, the breakdown of the former Soviet Union and other states is resulting in the emergence of independent states.
However, it would be a mistake to see this as an unproblematic move towards the recognition and fulfillment of the rights of peoples, or a move away from domination and oppression. Indigenous peoples throughout the world today watch as control over the lands which were originally ours, and which we still consider to be ours, passes from one imposed political order to another, just as we did with the formation of the Commonwealth of Australia, the United States of America, Canada, and the nations states of South America. The apparent process of change may involve a transfer of power and a reorganisation of the social and political order, however, that transfer is almost always from one non-Indigenous power (the primary coloniser) to another non-Indigenous power (the neo-coloniser). Indigenous peoples as peoples remain disenfranchised, and largely excluded from the political processes.
The Australian Nation? Exclusion and the dominant politic
As politicians moot Australia becoming a republic, and debate the rearrangement of political structures, Aboriginal and Torres Strait Islander people insist that the reorganisation of this society must not just be a matter of working out how to rearrange the pieces on the board to construct `the most desirable' Australian nation. We question the board, and the basic rules of the game themselves.
Inherent to the concept of citizenship is the concept of allegiance to a nation. As Aboriginal and Torres Strait Islander people continue to contest the foundations of the Australian nation as one which excludes and fails to recognise the pre-existing social and political orders of Aboriginal and Torres Strait Islander peoples, we cannot simply enter a debate about citizenship as if the nation itself is a given fact.
Therefore, in this paper, when I refer to political and legal systems, I do not use the terms `the Australian political system' or `the Australian legal system', but rather refer to the dominant political and legal systems. This marks a recognition of alternative systems which operate, but which do not have formal recognition within the dominant discourse.
Aboriginal and Torres Strait Islander people assert, and will continue to assert, that Indigenous political and legal systems exist and function, and that they should and must be recognised as having a place in the basic structures underlying the mainstream society, or parallel societies.
In saying this, I am aware that various sub-groups within the broader society, be they women, members of certain ethnic communities, or people of a particular religion, could make claims to having systems which operate in parallel with the dominant system, but which are different and are not formally recognised. However, there are strong legal, moral and pragmatic cases for providing formal recognition for Aboriginal and Torres Strait Islander systems and structures which distinguish them from those of any other group in this country.
The prior rights of Indigenous peoples
The Indigenous peoples of this country have consistently maintained that Aboriginal and Torres Strait Islander societies, and indeed nations, existed in 1788. These societies entailed the various characteristics which you would associate with an organised community, that is a political organisation, a legal system, a system of land holding, a system for caring for all members of the society (a welfare system), education, healthcare, and protocols for dealing with other nations (foreign affairs).
Non-Aboriginal invaders in 1788 refused to acknowledge the existence of such societies and their multi-leveled and complex systems, and accordingly imposed another political order, which was eventually to become the `Commonwealth of Australia'. The law of the early colonies was imported from England, and has gradually developed as a body of Australian common and statutory law. However, in none of these cases did it attempt to accommodate, let alone recognise the integrity of pre-existing law or political organisation.
The significant point in terms of the relationship between Indigenous and non-Indigenous peoples is that the very foundations of the current accepted Australian legal, political and social systems were based on the total denial of pre-existing structures. This point cannot be made strongly enough. In order to assert this, one does not even have to look to modern notions of international law, nor to some higher ethic of just relations between peoples. The English colonial legal system itself, in order to impose sovereignty in the way it did, that is providing no recognition of pre-existing structures and rights, had to deny the existence of such structures. This is precisely what it did.
This resulted in layers and layers of development of a society, and eventually a federated nation which continued to deny the existence of what was already there, and to overlay a whole new set of concepts, institutions, rules and mechanisms for administering the society.
This point is all the more fundamental to any contemporary discussion of citizenship and Indigenous peoples because the conflict between systems, and the failure to provide recognition, is not just a matter of past history. Despite two hundred years of non-recognition and attempted eradication, Indigenous systems continue to exist. As Aboriginal and Torres Strait Islander peoples, our primary citizenship, if that term is to be used, belongs with our Indigenous societies.
There is a general assumption that the inhabitants of this country have at some time willingly, albeit implicitly, accepted the Australian state and given it the power to govern them and administer the institutions which regulate their lives. In the case of Aboriginal and Torres Strait Islander peoples, this is not true.
If Aboriginal and Torres Strait Islander people are to become citizens of Australia, not just in the eyes of non-Aboriginal Australia, but in terms of our allegiance and active participation, the Australian Nation must find a way of accommodating the political, social and cultural position and rights of Aboriginal and Torres Strait Islander people as the first peoples of this country.
And so I come back to my initial questions: when you raise the issue of citizenship, which society and which political system are you talking about?
The relevance of the High Court decision on Native Title
The specific issue of land titles can be used to illustrate the dynamics of the relationship between Aboriginal and Torres Strait Islander peoples, and the dominant legal and political systems. This dynamic is evident at various other levels, for example the recognition or non-recognition of Indigenous laws pertaining to hunting, marriage and criminal behaviour, Indigenous forms of education, the delivery of goods and services and so on.
The term 'Native Title' was used by the High Court to signify the particular type of holding which Aboriginal and Torres Strait Islander peoples have over our lands. Prior to the 1992 High Court decision, it did not exist in the eyes of the law. However, since the High Court decision, the existence of Aboriginal land holding and social organisation in 1788, and its continued existence (albeit in a sparser form) in the present, have received formal recognition within the non-Aboriginal legal system. We now have a situation where the common law recognises generically different systems. It does not only recognise different levels of one system (such as leasehold or freehold title), it allows for the existence of a different dimension altogether.
Furthermore, the decision recognised that Native Title could only be defined by reference to the Indigenous traditional law which is the source of its validity. At the same time Native Title gives rise to rights, valid and enforceable within the common law system. Native Title has two distinct sources of validity. But its fundamental, original source, is Indigenous traditional law. This is a significant, albeit long overdue, change in the place which Indigenous peoples and Indigenous societies have in the dominant Australian legal and political system.
It is little wonder that there has been such turmoil since the decision, because the selective blindness which began in 1788 has begun to see some light. And even more than that, to see some different colours.
However, the Government has decided that it will be necessary to translate the decision from the common law into legislation, and to pass legislation which will spell out the nature and extent of native title, how it is to operate, and the rights which adhere to it. Consequently, the direction which the Government will take will have an enormous impact on the rights and status of Aboriginal and Torres Strait Islander people, and will indicate how far it is prepared to support our rights as distinct peoples. It is extremely unfortunate that despite the positive rhetoric from some Government leaders, it appears that when it has come to spelling out so called commitment into concrete action, we are witnessing blatantly racist proposals which once again assimilate the rights of Aboriginal and Torres Strait Islander peoples at the bottom of the hierarchy.
The need for formal recognition of Indigenous structures
Applying the example of land holding more generally, there exists a situation where different living and functioning systems exist, but only one has formal recognition, or credibility if you like. You could then ask: Why can't they run together without formal acknowledgment? Why can't you just say, "well these other systems also exists, and they are the ones which in a practical sense regulate a large part of our lives, so it doesn't matter how they are represented in name."
Unfortunately, it has been the consistent experience of Aboriginal and Torres Strait Islander people that this has not happened in this country since 1788.
The primary reason for this failure to allow the continuous operation of informal or parallel systems is competition over resources. Land holding and land use are the clearest and most basic examples. It is very difficult to have two systems regulating one piece of land where they would make very different uses of the land, or where the profits derived from the land would be distributed in different ways. And as non-Aboriginal people find uses for land in more and more parts of this country, the areas which are not coveted by someone for profit are rapidly diminishing.
A second and related reason is the desire to assert power and control. Not just in Australia, but throughout the world, non-Indigenous peoples have gone into other countries and insisted that the peoples living there be converted to their ways of life, be that in the context of religion, education, health care, housing or morality. Even where Aboriginal and Torres Strait Islander people wanted to `get on with our own lives' and live according to our own ways, we have not been permitted to, because other people decided that it would be best for them to be converted and assimilated into other systems. And this applies even where we were in a remote area which non-Aboriginal people did not see as materially profitable.
Today we have a situation where Aboriginal and Torres Strait Islander people have been forced to come to the conclusion that we cannot live on our own country without working out a way of receiving recognition and guaranteed respect for our autonomous systems and our politic from the non-Aboriginal system.
To return to the theme of Aboriginal people and citizenship, the first conclusion to be drawn from the above is that fundamentally, `citizenship' as such is pretty much besides the point, or `after the fact'. Citizenship, as a distinct issue, cannot be resolved until the more fundamental questions about the principles underlying the most basic social and political structures operating in Australia are fully dealt with. It is possible, and it has been proven to be the case that Aboriginal and Torres Strait Islander people can be exploited, oppressed and excluded with or without citizenship.
The rights of Aboriginal and Torres Strait Islander peoples
To move to the question of the rights which Aboriginal and Torres Strait Islander people require as citizens of a just society, three core issues require examination: the principle of non-discrimination; the principle of distinct status; and group as distinct from individual rights.
(i) Discrimination before and after 1967
(please note that this section relies on the understanding of many Indigenous people that the 1967 Referendum resulted in the granting of citizenship rights to Aboriginal and Torres Strait Islander peoples - for further discussion see Chapter 2 of the Fifth Report)
One of the central conditions for full participation as citizens is the full implementation of the principle of non-discrimination. Non-discrimination in this context means not depriving Aboriginal and Torres Strait Islander people of the basic rights which belong to all people legally resident in this country.
Prior to the attainment of citizenship for Aboriginal people in 1967 that principle was pretty thin on the ground. To give a sample of the many examples, that meant that we could generally not obtain a passport, we could not travel between imposed states borders (regardless of where the borders for our country lay), we did not have access to society's basic institutions, we could not purchase alcohol, and we could not participate in the political life of the country. We were not even counted in the census of the people of this country.
Since citizenship was conferred on Aboriginal and Torres Strait Islander people, at least in a formal sense, many of the barriers to participation were lifted. However, blatantly discriminatory legislation still existed for some time in many states 1, and it is unfortunate to have to observe that legislation still exists which is indirectly discriminatory, that is, it has a disproportionate impact on Aboriginal and Torres Strait Islander people 2.
Despite the fact that Australia ratified the International Convention on the Elimination of All Forms of Racial Discrimination in 1975, and passed federal legislation making racial discrimination in all areas of public life unlawful in the same year, as Aboriginal and Torres Strait Islander people we continue to suffer the effects of racial discrimination in virtually all areas of our lives.
However, what citizenship provided was a ticket of entry into the political system. Unfortunately, in practice it was a concession ticket which only gave us entry to the back stalls and to some of the shows. Nevertheless, it must be acknowledged that without the capacity for inclusion, albeit in a limited form, invidious and direct discrimination against Aboriginal and Torres Strait Islander people was entrenched at a Constitutional level.
Thus the "granting" of citizenship offered an opportunity for Aboriginal and Torres Strait Islander peoples to have a voice, and to move from a situation of being totally controlled by external regulations, to one where we could also have some control over the decisions which affected our lives.
Citizenship also offered an opportunity for the full implementation of the principle of non-discrimination. However, formal equality, if rigidly interpreted can be, to quote Justice Brennan, "an engine of oppression destructive of human dignity if the law entrenches inequalities `in the political, economic, social and cultural or any other field of public life". 3
(ii) The principle of difference
It is at this point that the second principle, that of 'difference' comes into play. From the point of view of the dominant non-Aboriginal society, Aboriginal and Torres Strait Islander people's being given citizenship meant that we would be allowed to assimilate into the wider society and be just like everyone else. No worse, no better, no different.
For Aboriginal and Torres Strait Islander people, if citizenship is to offer an opportunity for attainment of our aspirations, it must mean something else altogether. It must mean getting a foothold in one system so that we can get recognition for different systems and different sets of rules and protocols. That spells out to the ability to control and administer social and legal institutions which will operate according to our belief systems, aspirations and needs, as we know them to be and as we define them.
To return to the High Court decision on native title; its potential power lies in the fact that, to some extent, it provided recognition, inclusion and equality while retaining and asserting difference. Or at the least, it provided an opportunity for that to be achieved.
Thus, prior to 1967 Aboriginal and Torres Strait Islander people had a legally and politically distinct status, but our differential treatment was clearly worse than that of any other group of people in this country. Since 1967 the official policy has generally been that Aboriginal and Torres Strait Islander people have the same political and legal status as all other Australians, and as such must be subject to the same treatment. 4 Where we do not receive the same treatment, again, then by virtually any criteria, the difference generally puts us in a clearly inferior position.
What we are trying to communicate to non-Aboriginal Australia is that we do not want to be treated as the same (because we are not), and we do not want to be treated as inferiors. Distinctive need not equal disadvantaged or privileged. Difference is not the equivalent to hierarchy. We are no better, no worse and different.
(ii) Group rights
The third concept which requires elaboration is group rights. Its significance in the context of a discussion about Aboriginal and Torres Strait Islander people and citizenship is that citizenship, as it currently exists, adheres to individuals. Accordingly, the rights accorded to citizens are individual rights. Within the existing Constitution there is virtually no recognition of group rights. As the most significant and unrecognised rights for which Aboriginal and Torres Strait Islander peoples are seeking recognition concern our rights as peoples, the achievement of these will require structural change in the categories and articulation of rights guaranteed to citizens.
One of the key problems for Indigenous peoples has been that up to the present, the attempts to ensure the enjoyment of human rights, that is both international and domestic human rights instruments focus virtually exclusively on individual rights. This approach fails to achieve justice, even in a democratic society, firstly because those belonging to a relatively powerless numerical minority will not have sufficient weight to have their interests widely recognised, and secondly because group rights are not reducible to individual rights.
In the landmark Case concerning Minority Schools in Albania, the Permanent Court recognised that if special group rights are not granted to particular groups to defend their cultures, the practice of religion, and the use of their languages, they will be treated unequally and unjustly. 5 Similarly, the Permanent Court in the Minority Schools decision, and the European Court in the Belgium Linguistics case 6 have recognised the limited nature of conceiving rights in purely individual terms.
There are limited provisions in international instruments which recognise group rights, such as Article 1 of the International Covenant on Civil and Political Rights, which concerns the right to self-determination, and Article 27 of the same Covenant which recognises that the individual's rights may need to be exercised in community with other members of a minority group (ie the rights of assembly and of association, and the enjoyment of cultural, linguistic and religious rights). Where group rights are mentioned, they are frequently poorly defined and open to a range of interpretations. Where they have been interpreted as political rights, as in the case of the right to self determination, the group for whom the right is guaranteed has been interpreted as being synonymous with Nation State. 7 Where indigenous people do not have separate nationhood, which is the almost universally the case, we have not been seen as having this right.
The failure of European systems of law to adequately recognise, or give weight to group rights as they apply to minority groups, and in particular Indigenous peoples, reflects the ethnocentrism which spans domestic and international human rights law. It also reflects the fundamental failure of non-Indigenous law makers, even when claiming to be establishing 'universal principles' to understand the framework and priorities of Indigenous peoples.
However, it is not merely ethnocentrism which prevents the recognition of group rights. Nation states perceive the demand for recognition of group rights as a threat to national integrity and stability. They fear that when a people seek recognition of their rights as a people, the next step will be to challenge the sovereignty of the state or propose secession. As I will argue below, while this should always be retained as an option, self determination must today be interpreted as having a broader application.
Nevertheless, to the extent that such threats have any reality, it would perhaps be a valuable for states (or Governments) to ask themselves the question of why, if they are validly representing the interest of the people of their constituency, sections of the population feel the need to consider such radical action.
I would suggest that in order to answer this question, States should be examining their human rights standards in relation to those sections of the population. Conflict does not arise where rights and fundamental freedoms are guaranteed. Conflict arises from the denial of freedom and rights. People who are not free will always fight for that freedom.
Should states see national integrity as in their interest, it would seem that it would also be in their interest to guarantee and protect group rights of minority groups within their jurisdiction.
For Aboriginal and Torres Strait Islander people, the right to exercise and enjoy group rights will be an essential aspect of our citizenship. If the Australian Government, whether it be a Commonwealth Government or a Republic is to have any credibility in its claim to represent the population of this country, and that is to include Aboriginal and Torres Strait Islander people, then recognition of the right to self determination, and other group rights will have to be an integral part of its Constitutional and legal framework.
A society of peoples?; Working out just terms
Recognising the issues raised by these three concepts, the major challenge facing this country, and in fact countries all over the world, is how to support, within one geographic area or one political entity, different peoples, and their different interests and institutions.
Several strategies have been considered. One is to separate out altogether; to divide people into entirely distinct political entities where they will govern and be governed according to a set of tenets which derive from their defined community principles. In the case of Aboriginal and Torres Strait Islander peoples, this would presumably amount to secession and the formation of a separate sovereign nation or nations.
This approach raises a number of difficulties. Where there are territory and resources over which more than one group claims it has rights, there will always be disputes about how to divide them. If groups fragment into small independent states with few resources, not only may it be difficult for them to support themselves internally, but in terms of the international community, on which we are all highly dependent in today's world, they may very well lack the power to assert their needs and bargain to have them met.
Another strategy is to establish a 'majority ground' which supposedly represents the position and interests of the numerical majority. This may possibly include trying to find ways of accommodating needs of minority groups (in the numerical sense). However, where this occurs, it generally happens as an adjunct which operates at the fringe rather than as a central part of political and institutional structures. This strategy will never be satisfactory for people who are a numerical minority or relatively powerless, because the recognition of their rights and different needs is always going to be considered a peripheral benefit, and the first thing to be cut when the budget gets tight or there are additional demands on the system.
What we need to find is a way of procuring the benefits of being a relatively large group occupying a very large territory, while fully recognising and supporting different groups on the political, social and cultural dimensions. This may mean the formation of a socio-political structure which is equivalent to some type of co-operative with enough cohesion to facilitate communication between different sections and to share certain institutions and resources where appropriate, but to nevertheless retain and ensure the recognition of the human rights of specific groups, and in particular Indigenous peoples.
In considering how to work this dilemma out, we are now having to go beyond traditional concepts, and stretch the way that we think about citizenship and political participation. Up to the present time, there has been a broad assumption that the political entity of the nation state 'Australia' actually coincides with the theoretical 'one people' of Australia; that a person's citizenship corresponds to a nationality which is defined by the territory in which they live. 8
It has also been assumed that there is a coincidence between culture, geography, 'people' and a political organisation, and that for each nation there is a corresponding sovereign state where ultimate authority vested in one set of institutions. It is timely for us to question these arrangements, and to ask whether they necessarily achieve the most just societies. One can now ask specifically, whether the physical borders drawn around this country and the corresponding sovereign state are those which will achieve the greatest justice for all peoples within those borders.
Emerging in the modern world is a growing recognition of the importance of cross national relations and global cultures. This is not altogether a new phenomenon, as evidenced by the longstanding influence of religious institutions which have for centuries spanned continents. Similarly, trans-national corporations have had an escalating power for some time. However, we are now witnessing the emergence of international networks of a different type. Networks are forming in particular in the field of human rights and between groups of peoples in different countries, each of whom are relatively powerless within their own territory.
In the case of Indigenous peoples, Indigenous communities in countries across the world are finding that we share experiences, problems, aspirations and needs. In fact we are discovering that in many ways we have more in common with each other than with the people who are officially classified as the same nationality. Our existing dominant legal and political systems, including the international system, are very much state based. The United Nations General Assembly passed a resolution that:
all States uphold the obligation to enforce the Charter of the United Nations and the Universal Declaration of Human Rights and this Declaration, on the basis of equality, non-interference with the internal affairs of all State and respect for sovereign rights of all peoples and their territorial integrity. 9
Despite the fact that this resolution seeks to protect the sovereign rights of peoples, and the fact that there is no legal or generally accepted political definition of 'peoples', statist international law has insisted on a narrow definition of 'people' as being synonymous with the state. The only exceptions to this have been peoples classed as dependent or subjected to 'alien subjugation, domination and exploitation'. 10
Indigenous peoples are unquestionably distinct peoples according to the various social, cultural and ethnological meanings of the term (meeting all the criteria in terms of distinct language, law, values and traditions, histories and economic, religious and spiritual relationship with the territories in which we have lived), and we would argue that we should also fall within the category of a people subjected to 'alien subjugation, domination and exploitation'. However, Indigenous peoples have not been recognised as having the rights which are guaranteed to peoples, and in this sense we have been formally excluded from the definition of peoples.
The most important effect of this narrow interpretation is that it has resulted in the formal exclusion of Indigenous people from the right to self determination, which as discussed above is guaranteed by international instruments as a right to all peoples. This politically motivated interpretation of the term is totally unacceptable to Indigenous people, for whom this right is a prerequisite to the enjoyment of all other human rights and fundamental freedoms. 11
Self determination in international law has been defined as the right of peoples to "freely determine their political status and freely pursue their economic, social and cultural development". While the concept of self-determination is too vast a topic to explore in depth in the present context, Aboriginal and Torres Strait Islander people are in the process of exploring various options for exercising self-determination, ranging from complete independence, co-operative arrangements as part of a federation, limited autonomy, regional autonomy, self government, self management, or other arrangements to be worked out by communities.
The dominant political and legal system in this country must recognise Aboriginal and Torres Strait Islander peoples as peoples, and as such as validly having the right to self determination. The exclusion of peoples who do not constitute a nation state goes beyond the right to self determination. Virtually all dealings within the United Nations must take place between recognised states or individuals. There is almost no capacity to make a claim of a breach of your group rights, or to receive recognition or redress as a people, unless that people coincides with a nation.
The principle of national integrity laid down in the Charter of the United Nations preserves the power of the nation state to manage all affairs within its own borders, including those of all peoples within those borders, except where the international community deems it a matter of international peace and security. 12
The United Nations Charter relies on nation states to manage the needs of all peoples within their borders, including minorities. Recognising that it cannot be assumed that this will occur in a just manner in all countries, the international community has attempted to protect the rights of minority groups by establishing principles for individual rights (in the form of human rights instruments) with which nation states would agree to comply.
However, this has not led to satisfactory results for minority groups, and in particular indigenous peoples. Hence, we find it necessary to go beyond the boundaries of the nation state, and demand that the international community in the first instance recognise the importance of promoting and protecting group rights, with a view to those rights also being recognised by nation states.
Setting just standards
In view of the inadequacies of the current international and national systems to provide adequate recognition or protection of the rights of Indigenous peoples, the Working Group on Indigenous Populations was set up by the United Nations Sub-Commission on the Prevention of Discrimination and Protection of Minorities. Since 1982 it has been working towards the evolution of standards concerning the rights of Indigenous peoples, which will form the draft Declaration on the Rights of Indigenous Populations.
One of the key issues addressed by the Working Group has been the right to self determination and the meaning of `peoples'. In the eleven years since the inception of the Working Group, Indigenous representatives, including representatives of Aboriginal and Torres Strait Islander peoples, have been arguing to the Working Group that the right to self determination, in its fullest meaning, must extend to Indigenous peoples. In July of this year, during its eleventh session, the Working Group unanimously agreed that the Draft Declaration should include the right to self determination, and that the wording should be the same as that in the United Nations Charter, the Universal Declaration of Human Rights, and the two Covenants (the International Covenant on Civil and Political Rights and the International Covenant on Social, Economic and Cultural Rights). This means that, if the Draft Declaration is adopted, the International Law will for the first time recognise the right to self determination as applying to Indigenous peoples, without qualification.
In doing this, it has been recognised that self determination must include more options than secession, and must embrace options where Indigenous peoples would retain distinct status while remaining part of an existing state.
The principles which would inform the way non-secessionist forms of self-determination are realised would include the right of Indigenous peoples to freely negotiate our status and representation within the state, our right to preserve and promote our unique values and cultures, and the duty of the state to accommodate the aspirations of Indigenous peoples through Constitutional reforms which will ensure the genuine sharing of power. It is hoped that the Draft Declaration will promote the different forms of self-determination, and act as a basis for Indigenous peoples within nation states to fully enjoy the right to self determination. However, the right to secede must remain an option.
While setting internationally accepted human rights standards for the rights of Indigenous peoples, including our group rights, will be crucial in achieving full recognition of those rights, it will ultimately be states which will have to implement them if Indigenous people are going to have our rights recognised in practice, while remaining part of those states. Given the past record of nation states in ensuring the recognition of these rights, it is a wise move on the part of Indigenous peoples to be exploring all options of how we may relate to existing states in the future.
To the extent which `citizenship' within states is going to be a mechanism for achieving the full enjoyment of the human rights of Indigenous peoples, it will have to allow for the relative autonomy of peoples, and full protection of the rights which will be articulated in the Draft Declaration. We believe that a new form of arrangement, one which is not based on national identity as we presently define it, will be necessary to achieve the full and just representation of different interests and needs which Indigenous peoples are currently seeking.
Who should be seeking citizenship?
I would like to conclude with a different perspective on the notion of citizenship and Aboriginal and Torres Strait Islander peoples. I began by asking the questions: "citizenship within which society?"; and, "recognition by which political system?." This subject is almost always approached today from the perspective of whether Aboriginal and Torres Strait Islander people should be Australian citizens, and if so, what citizenship should involve. It strikes us as somewhat of an irony that when non-Aboriginal people came to this country in 1788, they did not ask the same questions of themselves in relation to Aboriginal or Torres Strait Islander nations. They never applied for citizenship within our societies. They never considered what rights and obligations were associated with being a citizen within Indigenous nations, and they certainly never attempted to respect those rights or obligations.
I would suggest that these questions are still relevant today, and that as well as exploring the issue of Aboriginal and Torres Strait Islander people and Australian citizenship, you also consider the issue of non-Aboriginal people and their citizenship within the Indigenous nations of this country.
Reference notes
1. For example, it was not till the mid 1970s that Western Australia repealed legislation which made it an offence for Aboriginal people to cross a State border, or to be assisted in so doing.
2. For example of the Summary Offences Act (NSW), the continuation of the criminalization of public drunkenness in Victoria, the 'Two Kilometre Law' in the NT (which makes it unlawful for a person to drink in a public place within two kilometres of licensed premises), have all been shown to have a disproportional effect on Aboriginal people, and to lead to Aboriginal people in particular being charged and imprisoned more often for relatively minor offences.
3. Brennan, J, Gehardy v Brown, (1985) 57 ALR 472, 516
4. As discussed above, this principle was made law by the Racial Discrimination Act.
5. PCIJ Ser A/B No 64 (1935) 18.
6. ECHR Ser A vol. 6 (1968)
7. The issue of the right to self determination and the meaning of a `people' is discussed further below.
8. The concept of Nationality has been explored in considerable detail elsewhere, for example E Kamenka (ed), Nationalism: The Nature and Evolution of an Idea (London, 1976).
9. United Nations General Assembly Resolution 1514, para 7
10. See Erica-Irene A Daes, Chairperson of the Working Group on Indigenous Populations, Discrimination Against Indigenous Peoples, Explanatory note concerning the Draft Declaration on the Rights of Indigenous Peoples, Item 14, 45th Session of the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, 1993.
11. As Nettheim asserts: "International law ought to be sufficient in principle to meet the autonomy claims of indigenous peoples.....After all the right to self determination is promised to all peoples'. Why should one particular set of peoples - a particular sub-category of indigenous peoples - be denied any of the options that international law permits merely because one of those options may not be available?" (Nettheim, Garth, 'Peoples' and 'Populations': Indigenous Peoples and the Rights of Peoples in Crawford, J., The Rights of Peoples (1988), p. 120.
12. For a fuller exploration of the principles of national integrity and non-interference, see the Charter of the United Nations, Article 2 and Chapter 7.
Last updated 1 December 2001
