'Setting the scene'
Opening address
to the 'Indigenous peoples and racism' Conference
A Regional Meeting for the United Nations World Conference Against Racism,
Racial Discrimination, Xenophobia and Related Intolerance by Dr William
Jonas AM , Aboriginal and Torres Strait Islander Social Justice Commissioner
, Human Rights and Equal Opportunity Commission, 20 February 2001
I would like to acknowledge the Eora people, the traditional owners and
custodians of the land where we are meeting today. I would also like to
acknowledge and thank Uncle Max Eulo and Alan Madden for their generous
welcome to country this morning, and welcome all participants in this
conference - many of whom have travelled great distances to be here.
I would also like to commend ATSIC and the Office of the United Nations High Commissioner for Human Rights for having the foresight and commitment to hosting and funding this conference as part of the preparations for the upcoming World Conference Against Racism.
At the outset I want to stress the importance of the upcoming World Conference Against Racism. In its resolution establishing the upcoming World Conference, the General Assembly of the United Nations notes:
with grave concern that, despite the efforts of the international community, the principal objectives of the two previous Decades for Action to Combat Racism and Racial Discrimination have not been attained and that millions of human beings continue to this day to be the victims of varied forms of racism and racial discrimination ... [1]
Racism is on the increase across the globe. No country is immune to this - including Australia. There is an urgent need for consideration of actions to combat racism.
The upcoming World Conference is the third such conference to be held by the United Nations in the past forty years. The second conference took place in 1983, almost twenty years ago.
A lot has happened in those twenty years. There have been many developments in the fight against racism - ranging from the end of the apartheid system in South Africa at one end of the spectrum to ethnic cleansing in Europe and Africa at the other end.
International attention to racism has also changed in its focus. In previous decades, international action to combat racism has been clearly focused on such evils as apartheid, segregation and nazism. These movements are based on explicit ideologies grounded in the racial superiority of one group over another. While doctrines of racial superiority continue, the way that racism manifests in society today is often more complex and diverse.
This presents a great challenge for us. The International Council on Human Rights Policy recently expressed concern that the fight against racism today is not as strong as at the time when the international community was united in the fight against these evils. This is not to say that concern about racism does not remain in the public domain. It clearly does - but it remains so less pressingly, in a less united way, and with the denial of human dignity that racisms represents being much less visible [2] .
Professor Theodor van Boven, a former United Nations Special Rapporteur and member of the Committee on the Elimination of Racial Discrimination, also links the struggle against racism in the 1950s, 60s and 70s to the struggle against colonialism. He argues that this focus and the common strategies that were developed to counter it, envisaged racism and racial discrimination as something practised by others. It largely ignored the existence of similar or comparable practices on one's own domestic scene. Combating racism in this context was envisaged by the majority of the members of the United Nations as 'a matter of foreign policy' [3] . This has now changed. Consequently:
Very few or rather no countries can nowadays make a legitimate claim that they do not face within their own borders problems of racial discrimination ... Such an awareness is now widespread and constitutes a step forward but also underlies the complexities of the problems. [4]
One of the most important developments in the fight against racism in the past twenty years has been the greater consideration given to issues of discrimination against Indigenous peoples, particular since the publication of the Cobo study on the problem of discrimination against Indigenous peoples by the United Nations in the 1970s. A striking aspect of the Cobo study was the realization that, almost without distinction, Indigenous peoples across the globe are marginalised and severely disadvantaged in the nations where they live.
The international community, through the structures of the United Nations, has begun to respond to this realization in two main ways. First, there have been developments over the last 20 years in the interpretation of the core principles of the international law system - non-discrimination, equality before the law and self-determination - making them more responsive to the circumstances of Indigenous peoples.
Second, the United Nations has begun to recognise the unique status of Indigenous peoples by providing forums within the United Nations structure - such as the Working Group on Indigenous Populations and the recently established Permanent Forum on Indigenous Populations - for Indigenous peoples to elaborate upon and further develop the application of human rights principles. The Draft Declaration on the Rights of Indigenous Peoples is a product of this engagement.
These developments represent a major, though incomplete, shift in the human rights system. In fact, Indigenous peoples are yet to benefit from these developments in any significant way. Mr Miguel Alfonso Martinez, in his recent Study on treaties, agreements and other constructive arrangements between States and Indigenous populations, notes that Indigenous peoples continue to enjoy standards of living and socio-economic conditions that are far inferior to the rest of the society in which they live. He laments that 'not much of substance has changed for Indigenous peoples since (the publication of the Cobo study in the 1970s). The basic elements of their relationships with the non-Indigenous world remain unchanged' [5] .
This conference should be seen as a significant opportunity to consolidate these developments in the United Nations through the articulation of a concise, clearly elaborated plan of action for combating racism and racial discrimination against Indigenous peoples.
It is important to note, however, that the World Conference is ultimately a meeting of UN member states. While participation and contributions from non-government organizations, National Human Rights Institutions, other UN agencies and affected groups such as Indigenous peoples is being actively sought, at the end of the day it will be the governments of the world who will negotiate and commit to a program of action at the World Conference.
This is something that we must bear in mind as we progress over the next three days. While our deliberations must be aimed at specific, targeted recommendations for combating racism against Indigenous peoples in an international context, we must also consider strategic approaches for tackling racism domestically, and for lobbying governments to take action in their own backyards, as well as to support Indigenous aspirations in international forums.
This is not an easy task, as anyone who has taken an interest in the negotiations in the Commission on Human Rights Working Group on the Draft Declaration on the Rights of Indigenous Populations will tell you. The Draft Declaration represents a very clear vision from Indigenous peoples of how we conceive of our rights. Yet governments across the globe have yet to agree with the basic proposition that underlies the Draft Declaration - namely that we are peoples, and that there is a collective dimension to our livelihoods and identity.
I am confident, however, that we will be able to build upon and significantly progress the agreed position of governments in the World Conference on Human Rights held in Vienna in 1993. Paragraph 20 of the declaration of the conference states that:
20. The World Conference on Human Rights recognizes the inherent dignity and the unique contribution of indigenous people to the development and plurality of society and strongly reaffirms the commitment of the international community to their economic, social and cultural well-being and their enjoyment of the fruits of sustainable development.
States should ensure the full and free participation of indigenous people in all aspects of society, in particular in matters of concern to them. Considering the importance of the promotion and protection of the rights of indigenous people, and the contribution of such promotion and protection to the political and social stability of the States in which such people live, States should, in accordance with international law, take concerted positive steps to ensure respect for all human rights and fundamental freedoms of indigenous people, on the basis of equality and non-discrimination, and recognize the value and diversity of their distinct identities, cultures and social organization.
There are five themes for this conference and the World Conference Against racism. They are:
i) Causes - examining the sources, causes, forms and contemporary manifestations of racism, racial discrimination, xenophobia and related intolerance;
ii) Victims - identifying who are the victims of racism;
iii) Prevention - considering measures for prevention, education and protection against racism in all its forms;
iv) Remedies - considering processes for effective remedies, recourse, compensation and redress, and other measures for victims of racism; and
v) Strategies - for achieving full and effective equality.
It is intended that the discussion of these themes throughout the World Conference processes will meet the following objectives. That it will:
- review progress in the fight against all forms of racism, and allow an appraisal of the obstacles to further achievement in addressing racism and of ways to overcome these obstacles;
- consider ways and means of better ensuring the application of existing human rights standards and the implementation of existing mechanisms to combat racism;
- increase the level of awareness about racism and provide a better understanding of the factors leading to racism (be they historical, cultural, political, economic or otherwise); and
- formulate concrete recommendations on ways to increase the effectiveness of the UN in combating racism and on action- oriented measures to combat racism at the national, regional and international levels. [6]
We should keep these themes and objectives in mind as we progress through the conference. In particular, I would urge that people keep the following factors in mind.
It is important to reiterate that this conference is action-oriented. It is expected that at the end of the next three days we will have formulated recommendations and a programme of action for transmission to the High Commissioner for Human Rights. This programme of action should discuss all issues relating to racism and Indigenous peoples, and identify actions to combat racism. Indigenous organizations, non-government organizations, human rights institutions and hopefully many governments will then take this document away as a basis for negotiation on the platform that will emerge from the World Conference Against Racism in South Africa in September. We must remain focused on this task during the conference.
I would also urge everybody to draw on the wealth of international experience in dealing with racism against Indigenous peoples.
It is important to acknowledge that there are a range of existing human rights principles and mechanisms that are relevant to our discussions over the next few days. Parties to the International Convention on the Elimination of All Forms of Racial Discrimination, for example, are required to assure to everyone within their jurisdiction effective protection and remedies against acts of racial discrimination, and to provide just and adequate reparation to victims of racial discrimination. They are also required to adopt immediate and effective measures in relation to education in order to combat prejudices which lead to racial discrimination, as well as to promote tolerance, understanding and friendship.
These obligations clearly relate to the themes of prevention; remedies and strategies. In many instances the barrier to greater enjoyment of rights by Indigenous peoples will not be the absence of consensus on the need for such provisions, but failings in the way that these principles are implemented. We need to identify those relevant standards that already exist and consider how they can be better monitored and implemented (at both the national and international level)
The recent appearances by Australia before several of the United Nations human rights treaty committees also provide us with valuable guidance on where Australia currently stands on racial discrimination as it relates to Indigenous Australians.
Australia appeared before the Committee on the Elimination of Racial Discrimination in March 2000; the Human Rights Committee in July 2000; the Committee on Economic, Social and Cultural Rights in August 2000; and the Committee against torture in November 2000.
The various Committees expressed the following concerns about Australia's compliance with its existing human rights obligations:
- The lack of an entrenched guarantee against racial discrimination, which would override any subsequent legislation at the federal, state or territory levels. While there exists a Racial Discrimination Act this can be overridden by a subsequent piece of federal legislation that expresses contrary intentions. It is quite extraordinary to think that a government would override a guarantee of non-discrimination on the basis of race but this is exactly what happened with the amendments to the Native Title Act - which authorised states and territories to conduct activities that were racially discriminatory, and which would otherwise have been illegal. The government also currently has before Parliament a bill relating to reproductive technologies such as IVF which would weaken the guarantee of non-discrimination on the basis of marital status in the Sex Discrimination Act 1984;
- This is coupled with the lack of adequate protection of rights or provision of effective remedies for breaches of rights in the Australian system.International obligations are not automatically effective in Australian law upon ratification of a treaty. It requires an act of incorporation before this occurs. The result is that our obligations under the covenants on economic, social and cultural rights, and civil and political rights; the Convention on the Rights of the Child; and the Convention Against Torture are poorly implemented in the Australian system.
- A factor that accompanies this lack of protection of rights in Australian law is the refusal of the federal government to ensure compliance of the states and territories with Australia's international obligations - despite the compliance of all states and territories being an obligation undertaken by the federal government under a number of treaties, including the Racial Discrimination Convention (which requires Parties to the treaty to rescind, nullify, amend or repeal all laws that are in conflict with Australia's obligations under the treaty) and the civil and political rights covenant. This refusal to ensure compliance was most vividly demonstrated in the continued refusal to overturn mandatory sentencing laws in the Northern Territory and Western Australia.
Concern was also expressed at:
The discriminatory practices in relation to native title, through the passage of the Native Title Act amendments in 1998 and subsequent state and territory legislation.
The progress of the reconciliation process and the apparent loss of confidence in it by Indigenous peoples.
The inadequate response of the government to the Bringing them home report, including the failure to provide a national apology and monetary compensation, and the lack of an effective remedy for those forcibly removed from their family.
Over-representation of Indigenous people in the criminal justice system and the lack of interpreter services for Indigenous peoples in court processes.
The racially discriminatory impact of mandatory sentencing laws in the Northern Territory and Western Australia. The extent of continuing discrimination and disadvantage of Indigenous Australians, and the lack of equality in Australian society that it reflects. The insufficient action taken to ensure Indigenous peoples can exercise their right to self-determination; and Finally, the inadequate protection of Indigenous culture and heritage. [7]
The UN committees have undoubtedly identified a range of issues that we will hear a lot more about over the next few days. The challenge for us is to identify actions that can be taken to address these concerns. To this end, my annual Social Justice Report to the federal Parliament recommends a range of actions that the federal government must take to address these issues and to progress reconciliation within a human rights framework. Unfortunately that report remains subject to parliamentary privilege at this stage. It will, however, be tabled in federal Parliament in approximately four weeks time.
In addition to existing human rights standards we should also acknowledge the importance of those emerging human rights standards specifically relating to Indigenous peoples. These include the Draft Declaration on the Rights of Indigenous Peoples; ILO Convention 169; and the proposed American Declaration on the Rights of Indigenous Peoples by the Organization of American States. These documents have evolved over nearly twenty years of discussion and elaborate an Indigenous specific approach to human rights principles. They are standard setting documents and the principles contained within are increasingly influencing the development of principles in existing human rights treaties, such as CERD and the ICCPR.
There also exists a range of recent international studies and reports on Indigenous peoples, such as the Miguel Alfonso Martinez study on treaties and agreements between States and Indigenous peoples; and the two recent reports by Erica Irene-Daes on Indigenous peoples and their relationship to land, and draft principles for the protection of Indigenous heritage. These identify relevant principles and actions that are of relevance to actions to combat racial discrimination.
I am now going to put forward three basic propositions about human rights and Indigenous peoples that I think will be of relevance throughout the next three days. Each of these propositions directly relates to what I consider are the unique contribution that Indigenous peoples can make to the World Conference process.
First, Indigenous peoples occupy a unique place in the societies where they live. We have retained social, cultural, economic and political characteristics that are clearly distinct from those of the other segments of society. [8]
One of the key aspects of this uniqueness is our relationship to land. Erica Irene Daes, in her Final report on Indigenous Peoples and their relationship to land, identifies four factors that are unique to Indigenous peoples in this regard:
ii) A profound relationship which exists between Indigenous peoples and land, territories and resources;
iii)Social, cultural, spiritual, economic and political dimensions and responsibilities of this relationship;
iv)The collective dimension of this relationship; and
v)The intergenerational aspect, which is crucial to Indigenous people's identity, survival and cultural viability.[9]
As Madame Daes notes in her report, 'the gradual deterioration of Indigenous societies can be traced to the non-recognition of the profound relationship that Indigenous peoples have to their lands, territories, and resources as well as the lack of recognition of other fundamental human rights'[10].
She also notes that:
it is of critical importance to underscore the cultural biases that contributed to the conceptual framework constructed to legitimise colonization and the various methods used to dispossess indigenous peoples and expropriate their lands, territories and resources. It is safe to say that the attitudes, doctrines and policies developed to justify the taking of lands from indigenous peoples were and continue to be largely driven by the economic agendas of States.[11]
In the Australian context, Madame Daes correctly identifies the Native Title Amendment Act as an example of this , which 'demonstrates that Eurocentrist and discriminatory ideas continue to be evident ... and that such attitudes in national legislation ... trap Indigenous peoples in a legal discourse that does not embrace their distinct cultural values, beliefs, institutions or perspectives'[12].
In her conclusions she recommends that 'the discriminatory aspects of laws and policies relating to Indigenous peoples and their relationship to land should be at the forefront of the agenda of the World Conference Against Racism'[13].
Second, for Indigenous peoples to be able to fully enjoy their human rights States must recognise the collective dimension of our culture and identity. To date, the United Nations human rights system has focused largely on individual rather than group rights. The recognition of group rights poses a challenge to traditional notions of sovereignty and is the very difficult next step in the evolution of human rights principles. How States accommodate Indigenous people's collective rights within the framework of the nation is a difficult issue. Questions about the appropriate recognition of self-determination obviously come to the fore in this regard.
Third, the other great challenge for States that relates to Indigenous peoples is how a nation recognises cultural difference and embraces diversity. As the vision statement of the World Conference Against Racism states:
Instead of allowing diversity of race and culture to become a limiting factor in human exchange and development, we must refocus our understanding, discern in such diversity the potential for mutual enrichment, and realize that it is the interchange between great traditions of human spirituality that offers the best prospect for the persistence of the human spirit itself. For too long such diversity has been treated as threat rather than gift ...[14]
Under international human rights law, there are circumstances in which States are obliged to introduce positive measures of protection for Indigenous culture and identity. This obligation is most explicit in Article 27 of the ICCPR and Article 30 of CROC, both of which require that members of minority groups, including Indigenous peoples, 'shall not be denied the right, in community with the members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language'.
The United Nations Human Rights Committee has explained that in order to ensure that such rights are able to be enjoyed, not only are negative forms of discrimination prohibited, but that a substantive approach to non-discrimination may be required through the introduction of positive measures of protection. The Committee also makes a clear link between the requirement of positive legal measures and measures to ensure the effective participation of members of minority communities in decisions which affect them.[15]
The Committee on the Elimination of Racial Discrimination have also highlighted the need for effective participation in interpreting the principles of equality before the law and non-discrimination under that Convention. In a General Recommendation on the rights of Indigenous peoples, the Committee called on States Parties to:
a. recognize and respect indigenous distinct culture, history, language and way of life as an enrichment of the State's cultural identity and to promote its preservation;
b. ensure that members of indigenous peoples are free and equal in dignity and rights and free from any discrimination, in particular that based on indigenous origin or identity;
c. provide indigenous peoples with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics;
d. ensure that members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent; (and)
e. ensure that indigenous communities can exercise their rights to practice and revitalize their cultural traditions and customs, to preserve and to practice their languages. [16]
In closing, I want to focus your minds on the challenge for the next few days. In a background paper for the upcoming World Conference, Professor Theodor van Boven expressed concern at the lack of well-defined goals and coherent, clear and visible action in the struggle against racism and racial discrimination at this time. He also expressed concern that the previous two United Nations decades for action to combat racism and the previous two world conferences were 'events without noise and without effect'. He warned that the current third decade and world conference 'risks to share the same fate'.[17]
The challenge of this conference is to ensure that an Indigenous perspective on racism is clearly articulated, through the formulation of specific recommendations which are action-oriented and which identify practical measures to be implemented at the national, regional and international levels to eradicate racism.
To quote from the Dakar Declaration by the African Regional Preparatory Conference to the World Conference Against Racism:
availing ourselves of this historical opportunity requires political will, intellectual integrity and analytical capacity to draw lessons from past experiences with the view to avoiding their recurrence in the future ...[18]
I urge you to keep this goal in mind. I also look forward to participating in these proceedings over the next few days and wish you all well in these important deliberations.
Thank you.
[1] United Nations General Assembly, Resolution 52/111: Third decade to combat racism and racial discrimination and the convening of a world conference against racism, racial discrimination, xenophobia and related intolerance, UN Doc: A/RES/52/111, 18 February 1998.
[2] International Council on Human Rights Policy, The persistence and mutation of racism, Versoix, Switzerland 2000.
[3] Van Boven, T, United Nations strategies to combat racism and racial discrimination: past experiences and present perspectives, Background Paper, UN Doc: E/CN.4/1999/WG.1/BP.7, 28 February 1999, p5.
[4] Ibid.
[5] Martinez, M, Study on treaties, agreements and other constructive arrangements between States and Indigenous populations, Final Report, Un Doc: E/CN.4/Sub.2/1999/20, 22 June 1999, Para 243.
[6] See further General Assembly, Resolution 52/111, op.cit, para 28.
[7] See further: Committee on the Elimination of Racial Discrimination, Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia, UN Doc: CERD/C/304/Add.101, 19/04/2000; Human Rights Committee, Concluding observations of the Human Rights Committee: Australia, UN Doc:CCPR/CO/69/AUS, 28 July 2000; Committee on Economic, Social and Cultural Rights, Concluding Observations of the Committee on Economic, Social and Cultural Rights : Australia. UN Doc:. E/C.12/1/Add.50, 01/09/2000; and Committee against Torture, Conclusions and Recommendations of the Committee against Torture : Australia, UN Doc: CAT/C/XXV/Concl.3, 21/11/2000.
[8] United Nations High Commissioner for Human Rights, Fact sheet No.9 (Rev.1), The Rights of Indigenous Peoples,
[9] Daes, E, Indigenous peoples and their relationship to land, Final Working Paper, Un Doc: E/CN.4/Sub.2/2000/25, 30 June 2000, para 19.
[10] Ibid, para 20.
[11] Ibid, para 22.
[12] Ibid, para 31.
[13] Ibid, para 159.
[14] World Conference against Racism, Racial Discrimination, xenophobia and related intolerance, Tolerance and diversity: A vision for the 21st century, Office of the High Commissioner for Human Rights, Geneva 2000.
[15] Human Rights Committee, General Comment 23 on the rights of minorities (Article 27) (1994), para 7.
[16] Committee on the Elimination of Racial Discrimination, Genera Recommendation XXIII - Indigenous Peoples, 18/08/97, CERD/C/51/Misc.13/Rev.4
[17] Van Boven, T, United Nations strategies to combat racism and racial discrimination: past experiences and present perspectives, Background Paper, UN Doc: E/CN.4/1999/WG.1/BP.7, 28 February 1999.
[18] Dakar Statement, Declaration of the African Regional Preparatory Conference, Un Doc: WCR/RCONF/DAKAR/2001/L.1 REV.3, 24 January 2001, para 7.
