Social justice for Indigenous peoples
Speech by Michael Dodson, Aboriginal and Torres Strait Islander Social Justice Commissioner at the Third David Unaipon Lecture, October 1993
Ladies and Gentlemen
It is a very great honour for me to be invited to give this third lecture in commemoration of the great Aboriginal mathematician and scientist, David Unaipon.
I speak with you tonight in the spirit of the words set down by Indigenous people from all parts of the earth when they met in Brazil in 1992 to create the Indigenous People's Earth Charter:
We, the indigenous peoples, walk to the future in the footprints of our ancestors.
I have chosen for my topic the meaning of human rights and social justice for Aboriginal and Torres Strait Islander peoples. Upon reflection, I realised how appropriate it was to explore these issues in a lecture commemorating a great mathematician and scientist.
The pursuit of human rights, like the study of science, is the search for universal truths which are beyond the fluctuations and fallibilities of particular contexts. There is an ancient notion in most cultures that there exists a law which is different, higher and more compelling than that found in edicts of kings, chiefs, courts or governments; a law which has an absolute authority which human made law can never claim.
For Indigenous people, the appeal to universal human rights law offers a prospect of freeing us from the oppression we have suffered. Because, since the invasion and colonisation of our lands, we have been subjected to the discriminatory laws of the self proclaimed sovereign nation which assumed authority over us.
At the most basic level, for Indigenous peoples, social justice means that our lives will not be dominated by a foreign rule of law which fails to adequately support or take into account our unique identities and aspirations. It means that our voices will enter into a dialogue from which all peoples in a society negotiate the type of society they live in.
It's remarkably timely to be speaking about negotiation and social justice. This week, we finally appear to have reached a provisional national settlement in relation to native title, excepting the predictable bloody-mindedness of the Coalition and Richard Court.
Certainly, it would be absurd to assume that social justice now exists for Indigenous peoples, or that we now fully enjoy our human rights. But what has happened is that we have seen, perhaps for the first time in the history of this country since 1788, genuine negotiations in which the rights of Indigenous peoples, as articulated by Indigenous peoples, were given genuine respect and weight.
I'll return to discuss the issue of native title, but to begin with, I'd like to look more broadly at the concepts of human rights and social justice as they relate to Indigenous peoples.
As the first Aboriginal and Torres Strait Islander Social Justice Commissioner within the Human Rights and Equal Opportunity Commission, the meaning and nature of human rights and social justice are obviously of great concern to me. But as soon as I tried to pin down what they were, I was struck by the diversity of opinion about what is meant by human rights or what constitutes a just society.
Despite that, I think we all share an intuitive sense of what human rights and social justice are about.
Human rights as we name them are tokens for the lived experience of freedom, material equality and community.1 They are the minimum standards which are due to all human beings for the sole reason that we are human beings. No other condition need be fulfilled.
At the core, the most basic human right is the right to life, encompassing all those rights essential for human survival and human security. These include the fundamental rights to adequate food, shelter, and health care, and freedom from violence or any form of genocide.
Beyond that are the rights essential to human dignity and integrity; the rights to live freely and without fear of persecution or discrimination; the right to participate fully in cultural and political life; the freedom and ability to practice your chosen culture, spirituality or religion; being able to pursue your education and employment in ways which are appropriate to your culture; being free to live with your chosen community or family. 2
Basically they are having the opportunity to exist as you would choose to without gross interference or violation, and having the means to do so.
While human rights can be confirmed by legal instruments, the law is not their source. Human rights are those rights inherent in each person by virtue of their birth and human dignity. They precede human made law. They are not granted by any authority or government, and in fact their legitimacy is not dependent on whether anyone recognises them.
You could say that social justice is what we will achieve when all peoples enjoy their human rights. Concerns of social justice are concerns about the way the resources of a society are allocated, the nature of the social relations, and the opportunities of all members of the society.
But at the end of the day, social justice is going to have a negotiated meaning, with different sectors of society arguing for their particular interests; so the crucial question is going to be: who gets to negotiate, and whose voices are given due consideration in the final act of balancing competing interests?
When you start to ask those type of questions, you come out of the ideal or descriptive world of human rights, and into the world of practical reality where things are a lot more ambiguous and difficult.
Just as it would be impossible to describe heaven, it is difficult to pin down these somewhat mercurial concepts.
The irony is that people deprived of their rights and oppressed by injustice know in their hearts with undying clarity what these things are about. A human being cannot fail to know when they are deprived of the right to live in dignity and to be respected as a full human being.
So perhaps the concepts are best illustrated by describing some gross violations of human rights.
You know what the violation of your human rights means when you get up in the morning and there isn't a decent toilet. And the kids are sick again because the water is still contaminated.
You learn a bit more about what the violation of human rights means when you are moved off the land which your people have occupied for thousands of years so a multinational company can mine it and you're not given a say or a cent. Or when you're not allowed to go to court to make a claim because the government has passed legislation backing the interests of the powerful mining companies over your lives.
It means having 26 times more likelihood of being taken into police custody than your white counterparts, facing the fear of being harassed if not bashed in the cells, and being more likely to be sent to prison rather than receiving a non-custodial sentence.
It means having a life expectancy which is 20 years less than the average of all people in the same country 3, and dying at ten times the rate of the national average 4. It means being 50% more likely to commit suicide.5
It means having children who are 3 times more likely to die in infancy 6, or being four to five times more likely to die in childbirth 7. It means that if your child does live they will almost definitely suffer hearing impediments before they are even four months old 8, and that they will have less access to decent medical services than any other children.
It means that as your children grow older they will have a significantly lower chance than any other group of children in the country of getting through high school 9 and later of getting a decent job. 10
Every one of the experiences I have just listed are happening to Aboriginal and Torres Strait Islander peoples in this country today.
If we move back just 26 years, you could illustrate the absence of human rights by considering a family who can not go to visit their relatives who live just across the state border, where the adults are not allowed to vote, where the oldest kids have disappeared and been placed with another family or in an institution, and where the kids left are not allowed to speak or learn their own language at school.
When you are born as an Indigenous person in this country, you can get a lifetime of on-the-job experience studying human rights - through their absence.
Today, as we approach the twenty first century, peoples throughout the world, and in particular Indigenous peoples face the stark facts of systematic violation of rights. We suffer continued discrimination and marginalisation. Our lands and cultures continue to be stolen, destroyed and exploited.
In many parts of the world, our Indigenous brothers and sisters are still being murdered to clear the way for progress and profit.
It's a sobering experience to meet with Indigenous representatives from other parts of the world and to hear with haunting regularity the story of exploitation and abuse. Yanomami Indians of Brazil tell how their territories have been invaded by 45 000 gold miners whose mining activities have led to the entire river system of the Yanomami territory being poisoned by mercury, the death of 15% of the Indigenous population and the destruction of entire villages. The decision to proceed with these schemes received the permission and support of the Brazilian Government and preceded with no consent or participation of the traditional owners of the land.
Similar stories are told by Indigenous peoples from every corner of the earth whose lands and peoples are sacrificed at the hands of ever encroaching multinational companies seeking new sources of profit, and inevitably with the approval of the state. The Alutiiq of Alaska, the Udege of Far East Russia, the tribal people of the Chittagong hill tracts of Bangladesh, the Lumad of the Philippines are but a few who continue to fight against the physical destruction of their peoples and cultures.
So we know very well what human rights and social justice are.
The problem is that the enjoyment of human rights depends on the respect and action of all individuals and authorities in a society. "Rights" by their nature imply obligations which must be honoured and duties which must be carried out by those on whom they fall. As the French Philosopher Albert Camus wrote:
freedom is ..... a possession to be secured everyday by the effort of each and the union of all.
If we are going to attain social justice for all peoples, we must be able to communicate what that means and insist that it be a priority in the social and economic policies of the governments which control our traditional territories.
Increasingly, Indigenous peoples are looking to international and domestic human rights laws to turn the principles of justice into positive rights. Our hope is that by imposing legal obligations and offering legal remedies they will secure the fuller enjoyment of our human rights.
Again, it is worth remembering that if contemporary human rights law is to be our ally, then it comes against a background where the laws of colonial nations, and even the international law, have largely failed us. At worst they have been the instruments of our oppression; at best they failed to actively or adequately support our rights.
It is a sad indictment of where Indigenous people have been on the international agenda that, despite the existence of more than 70 United Nations human rights instruments, there is no instrument which adequately or comprehensively sets out or seeks to protect the distinctive rights of Indigenous peoples. Nor do Indigenous peoples have the right to a voice as peoples in international fora such as the United Nations. We must either speak as individuals, or from within the very nations from which we need protection.
However, in recent years, due to the strenuous efforts of Indigenous peoples, there have been moves to further the legal protection of Indigenous rights. For the last eleven years, Indigenous representatives from all over the world have been meeting in Geneva with the United Nations Working Group on Indigenous Populations to articulate our particular rights, and to produce the Draft Declaration on the Rights of Indigenous Peoples. This year the final work has been done on the Draft Declaration, which will now go up through the United Nations system and eventually to the General Assembly for adoption.
I'd like now to make some general comments about the nature of Indigenous rights, and to refer to some of the key areas.
* * * * * * * *
I spoke earlier of the fundamental human rights Indigenous peoples share with all others. These are universal and non-negotiable.
However, an understanding of the distinct rights of Indigenous peoples must begin with the recognition that we are unique peoples. First peoples. We belong to the lands to which we are Indigenous. Our cultures and our lands are inseparable, and the relationship with our lands preceded the introduction of all other cultures and peoples. As such we have prior and distinct rights over those lands.
From this basic recognition follow the main points about Indigenous rights.
1. Indigenous rights are inherent rights
First of all, our rights, including our rights to our land, to practice our law, and to maintain and develop our cultures are inherent. They are not given by any one or any government. Nor can they be taken away. Sadly, they can be abused.
When, in 1992 the High Court recognised the existence of native title, what it did was acknowledge that in 1788 Aboriginal and Torres Strait Islander people had rights over land, and that those rights continued to exist.
By rejecting the concept of terra nullius, the High Court decision in fact did not give Indigenous people anything. All that it did was invalidate the fiction which had supported the systematic and legalised violation of our rights.
2. The right to distinct status and to culture
Secondly, we have distinct rights. It is too often mistakenly asserted that equality means treating everyone in the same way.
Equality without a cultural context can itself become a form of discrimination and a violation of rights. To assert that we are different or that our distinct status demands different conditions is not a matter of charity or welfare, it is a simple recognition of who we are.
Thus, when the high court recognised native title as uniquely applying to Indigenous people, it did not discriminate against any other group. Nor did it add to the welfare of Indigenous people. It recognised that only Indigenous people possess the particular relationship with land which has been called native title, and that we must be permitted to enjoy the associated rights.
From the recognition of our distinct status there must also follow a respect for that distinct status. It is crucial that Indigenous peoples be allowed and supported to maintain and develop our distinct identities, and that we be able to practice and revitalise our cultural traditions and spirituality.
Full recognition of our right to distinct status as distinct peoples means that we must suffer no form of discrimination or interference when we choose to identify or live as Indigenous peoples. And, more than this it means that effective measures must be taken to ensure that we have the resources and means to support and strengthen our Indigenous identities and cultures.
Any derogation from this right, including policies of forced assimilation is cultural genocide.
To understand the importance of this right, I take you back to what I said about the war that is being waged on Indigenous peoples and cultures. it should be of the greatest concern to everyone in the world that such genocide has led to the irreversible destruction of many of our cultures.
It is no secret that many Indigenous peoples have already become extinct, or are seriously threatened. In fact, today in the United States of America and Europe, a program is being developed for the collection of human DNA samples from particular Indigenous peoples, including Aboriginal and Torres Strait Islander groups, who have been identified as threatened, so that the gene pool can be 'preserved'.
Entitled the Human Genome Diversity Project, this venture would have to be one of the more repulsive examples of the total disregard for the dignity and humanity of Indigenous peoples, and the willingness to exploit us with the grossest insensitivity.
The project labels threatened peoples 'isolates of historic interest' or 'ihi's'. Not peoples who are about to be lost to the world; not peoples who have been abused and violated to the point of extinction; not peoples who are in desperate need of the respect and support to survive in their integrity; but 'isolates of historic interest'.
It's sadly indicative that this type of effort can be put into preserving samples, but when we are still peoples we are not deemed equally worthy. In fact, at an average of $US 2,300 per sample, the project will spend more money gathering our blood than the per capita GNP of any of the world's 110 poorest countries. Just a fraction of the money or effort could make an enormous difference to the survival and quality of the lives of our peoples.
We have informally named the project the 'vampire project' for obvious reasons.
Finally, in the context of the right to our distinct identity, it must be recognised that part of the distinct identity of Indigenous peoples is that we are peoples with a common identity and collective rights.
As Indigenous peoples, we assert that our identity and our rights are not reducible to the rights of individuals, and that full enjoyment of our rights will include our rights as peoples.
With its cult of individual and emphasis on individual rights, non-Indigenous people in the western world have failed to acknowledge the collective nature of Indigenous societies, and have provided inadequate protection for the group rights of peoples.
The differences are clearly illustrated by looking at the concept of freedom of religious belief. In western cultures, this freedom has been protected by the right to freedom of individual conscience. Because in western religion, spiritual practice is grounded in the relationship between the individual and his or her god.
For Indigenous cultures, protecting the right to individual conscience does little to protect the right to practice our religions. Because that practice is grounded in our ceremonial kinship relationships with each other and our land. Religion for us is a biosystem of human belief inextricably linked to the physical and spiritual environment. To separate us out and say we have religious freedom is nonsensical within our cultural context.
3. The right to self-determination
The most fundamental group right, and the one which follows directly from the concept of distinct status is the right of self-determination.
In the face of the total disregard for our integrity and authority as peoples, it is crucially important to Indigenous peoples today that our right to self-determination be respected and that we, like other peoples have the right to freely determine political status and freely pursue economic, social and cultural development. 11
When we talk about self-determination, we are not talking about a particular outcome, we are talking about a process. A process in which we are full subjects in control of the matters which effect our lives.
Time and time again Indigenous people express the view that the right to self-determination is the pillar on which all other rights rest. It is of such a profound nature that the integrity of all other rights depends on its observance.
We hold that it is a right that has operated since time immemorial amongst our peoples, but it is the right which is at the centre of the abuses we have suffered in the face of invasion and colonisation.
The dominant theme of our lives since colonisation has been that we have been deprived of the very basic right to determine our own future, to choose how we would live, to follow our own laws.
When you understand that, you understand why the right to self-determination is at the heart of our aspirations.
4. Land rights
Finally, if self-determination is the process which must underlie the recognition of all our rights, land is the base for our Indigenous identities and the foundation for the enjoyment of our rights.
To fully understand why land rights are so important to Indigenous peoples, you have to move out of the paradigm that sees land as purely a commodity to be exploited. The deep connection which Indigenous peoples have with our land has been totally disregarded by non-Indigenous cultures.
For us, land has a spiritual, cultural, political and economic value. It supports our identity, our spirit, our social relations, our cultural integrity, and our survival. Land is the source of our physical and spiritual sustenance. Removed from our land we are literally removed from ourselves.
Again, we have had to emphasise this right because it has been so grossly violated. In this country, until 1992 there was a total denial that we had any rightful claim over our territories whatsoever. It has been degrading and humiliating for Indigenous peoples to have been forced into a position where land rights were seen as essentially a matter of welfare, dependant on the generosity of the state.
The importance of the High Court native title decision lies in the fact that it gave credibility to our assertion that we have rightful claims to land. It allowed us to move from a position of weakness and welfare to a position of strength and legal rights.
* * * * * * * *
Perhaps the key point to be made about Indigenous peoples and social justice is that our claims must not be seen as a matter of welfare, but rather as a matter of rights. As long as we are perceived, or we perceive ourselves as asking, we occupy a position which is powerless and destructive to our sense of worth and dignity. When we can assert our rights we can stand with our dignity and relate to non-Indigenous peoples from a place of strength.
But ultimately, what is going to count for Indigenous peoples is our lived experience. Knowing that we have rights, or even having rights in law doesn't in itself improve our health, or educate our kids or stop us being removed from our lands.
At the end of the day our plight will rest on compassion, respect and action. Because even the law is ultimately interpreted and enforced by human beings under the sway of their conscience and commitment.
As the Prime Minister pointed out in his historic Redfern address for the opening of the International Year of the World's Indigenous People, it was the failure to make the most basic of human responses, that of entering into the hearts and minds of others, which allowed and continues to allow non-Indigenous people to commit the horrendous acts of destruction which have plagued our peoples.
If we are to survive as peoples, we must be able to convey what it is like to live in a state of oppression and threat. Those who do not know the meaning of oppression have to be given the opportunity to visit from the inside the place we are coming from.
Unless all peoples are touched with this understanding, until there is full recognition of the gravity of the situation, until all people believe that human rights of all peoples must be respected, the marginalisation of the rights of Indigenous peoples will continue.
I believe that what we have seen in recent weeks in relation to the settlement of native title has poignantly captured the conflict and the challenge which faces us. Powerful vested interests have worked relentlessly to maintain the social and economic systems which structurally exclude other groups of peoples.
They use their powerful voices to argue that human rights concerns must not be allowed to stand in the way of economic development. They use their powerful voices to induce paranoia in the attempt convince the people of this country that their interest lay in supporting the status quo, regardless of its legal or moral basis. And there have been political figures who have been willing to support those interests and to ignore the voices of those seeking justice.
And I think that is pretty shameful.
But this time, the debate has been vigorous, and the proponents of justice have not been relegated to the margins. For some time there has been a growing consciousness that a society ruled entirely by the ethics of profit, exploitation of the environment and economic rationalism does not in the end support a decent quality of life for the majority of people.
But what is different now is that we have found allies of justice in powerful positions.
I believe that there is reason for optimism when the Prime Minister of this country takes the concerns and rights of Indigenous peoples no less seriously than he does the interests of other groups of society. There is even more reason for optimism when he is willing to stand up in support of those rights in the face of powerful opposition.
For too long we have watched our peoples done over as time and time again the interests of others were placed above our fundamental human rights. And it does terrible things to the spirit of a people when they lose hope of ever being seen as a genuine priority. The actions of the Prime Minister may yet be medicine for our spirit.
It is often said that even a positive result in the native title debate would directly benefit only 5% of Aboriginal and Torres Strait Islander people. I believe that in fact it will be to the benefit of all Indigenous and non-Indigenous peoples of this country.
For Indigenous peoples it would signify a genuine commitment to action beyond the rhetoric of social justice. For non-Indigenous people it would mean being able to live knowing that they had not been active participants in the history of "unutterable shame", and that they had been the generation to bring justice to this country.
But I believe that with vision, it could mean even more than that.
It is now all too evident that dominant models of land and social management are failing. The detrimental effects which single minded progress have had on the environment are no longer escapable. Nor is the suffering of an ever growing number of people who have been the victims of the great dreams of development.
I began with the invocation to walk in the footprints of our ancestors. I believe that it would be to the benefit of all peoples to look back to the world views and knowledge of Indigenous peoples. We are after all the peoples who lived for millennia with the land without bringing it, or us to the state of simmering crisis we now face.
It is our belief that our cultures offer a source of opportunity for a more equal, just and sustainable future. It is my hope that we will have the vision and respect to give ourselves that opportunity.
Endnotes
1. The concept of 'rights fetishism' from which this description of rights comes is developed by Valerie Kerruish is Jurisprudence as Ideology, Routeledge, 1991, p. 142.
2. For a fuller exploration of the meaning of human rights, see Julia Hausermann, Myths and Realities, in Davies, P (ed) Human Rights, p. 127.
3. Based on 1991 census figures the average age of death for non-Aboriginal men was 74, while for Aboriginal men it was 57. For women, the figures are 80 and 64.5 respectively.
4. Reported in the Medical Observer, 16 April 1993.
5. Reported in the Age, 23 July 1993.
6. NT Health Department figures reported in the NT News, 16 December 1992.
7. National Health and Medical Research Council statistics.
8. These figures apply to Aboriginal children in the Torres Strait Islands and do not apply to all Aboriginal children.
9. Only 80% of Indigenous children of compulsory school age are in primary or secondary schools compared with a national participation rate of close to 100%. About 30% of Indigenous children aged 16 or 17 years are in formal education or training compared with a national rate of 75%.Only 7% of 18 to 20 year olds were in formal education or training compared to a national rate of more than 40%. Only 50% of Aboriginal children have some pre-schooling compared with a national rate of 90%. Figures announced by Robert Tickner in January 1993, reported in the Canberra Times, 18 January 1993.
10. 1991 census figures indicate that 31% of Aboriginal people are unemployed, and a further 20 000 are working for the dole.
11. Article 1 of the International Covenant on Civil and Political Rights provides that:
All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
The right to self-determination is also set out in Article 1 of the International Covenant on Economic, Social and Cultural Rights.
The interpretation of the right to self-determination has been subject to much recent debate, and has generally been interpreted by nation states as not applying to Indigenous peoples. This is seen by Indigenous peoples as discriminatory, as they are peoples, and the Draft Declaration on the Rights of Indigenous Peoples currently sets out that the unqualified right to self-determination is a right of Indigenous peoples.
For a fuller discussion of this debate, see, for example, Nettheim, G., "‘Peoples’ or ‘Populations’: Indigenous Peoples and the rights of Peoples", in Crawford (ed.) The Rights of Peoples, Clarendon Press, 1988.
Last updated 1 December 2001
