HREOC Social Justice Report 2002: Self-determination

Social Justice Report 2002

Chapter 2: Self-determination - the freedom to 'live well'

Self-determination and the ‘politics of symbolism’

(Re-)Defining self-determination

a) Do Indigenous peoples have a right to self-determination?
b) What is Indigenous self-determination?
c) Summary - Defining Indigenous self-determination

The Government’s approach to self-determination

a) Reconcilation
b) Domestic policy debates about the rights agenda, treaty and governance reform
c) International debates on self-determination
d) Summary - the Government's position on self-determination

Implementing Indigenous self-determination in Australia

Conclusion – Reclaiming self-determination

Aborigines and Torres Strait Islanders continue to state their desire to be self-determining. Recent years, however, have been characterised by an increased attack by the Government and a range of conservative commentators on the legitimacy of such aspirations. At the same time that the nation as a whole, through the reconciliation process, has been contemplating what changes are necessary to make the relationship with Indigenous peoples more equitable, the federal Government has expressed its absolute opposition to any recognition of a right to self-determination or collective status for Indigenous peoples in its domestic policy approach. Instead the Government has preferred concepts relating to individual empowerment and responsibility, as if such attributes were in conflict with self-determination. The question is whether the difference is merely a rhetorical one or whether it has significant implications for the policy approach to Indigenous issues in this country.

The rejection of Indigenous self-determination has been even more fervently pursued by the Government in the international arena. Australia is one of only four countries that actively pursue the rejection of Indigenous peoples' self-determination and collective rights in the annual negotiations on the Draft Declaration on the Rights of Indigenous Peoples at the United Nations. In both the domestic and international arenas, Australia's opposition to recognition of a right to self-determination has been based on simplistic, and often legally incorrect, assumptions which present self-determination as purely symbolic, as a catchcry for all the failings of Indigenous policy in the past thirty years, or as 'a rigid choice between all or nothing - between the forming of an independent state or complete denial of a cultural and political identity'.[1] The reality of Indigenous self-determination, however, lies between these extremes and is a process of negotiation, accommodation and participation. Importantly, it is also about Indigenous peoples accepting responsibility and governments removing the controlling hand in order to ensure that such acceptance is meaningful and has consequences.

In this chapter I answer the question 'what is Indigenous self-determination?' by examining how this concept has developed in international law. I then examine the Government's position on self-determination in both the domestic and international arenas and provide an analysis of their approach. This analysis builds on the discussion of the importance of recognising self-determination as part of the reconciliation process that was contained in the Social Justice Report 2000.[2]

Self-determination and the 'politics of symbolism'

The past four years have seen the Government systematically lock into place its ideological approach to Indigenous affairs. 'Practical reconciliation' has been continually refined and has now infused (or perhaps infiltrated) into all areas of policy making and programme design - including at the inter-governmental level. In March 2002, the Minister for Aboriginal and Torres Strait Islander Affairs even went so far as to seek to repackage this approach as something new by proclaiming at the ATSIC National Policy Conference that the Government was 'changing direction' on Indigenous policy.[3] The reality, however, has been 'business as usual'.

The principal indicator of a change in direction in Indigenous policy occurred between 1996 and 1998 when the Government decided that it would no longer support the principle of self-determination as the basis of Indigenous policy formulation and in particular, when it announced that it would actively oppose recognition of Indigenous peoples' entitlement to such a right in international negotiations. In explaining the decision the Minister for Foreign Affairs stated that the Government would argue 'that it might be better to use the term self-management rather than leaving an impression that we are prepared to have an Indigenous state'.[4]

Speaking at the United Nations Working Group on Indigenous Populations in 1999, the then Minister for Aboriginal and Torres Strait Islander Affairs drew the now familiar distinction between so-called 'real' as opposed to 'symbolic' issues. He suggested that negotiations on the United Nations Draft Declaration on the Rights of Indigenous Peoples and its emphasis on self-determination and collective rights risked becoming 'a distraction from the real tasks and priorities at hand'. Instead, he stated the Government rejected 'the politics of symbolism' and was instead focused on 'practical measures leading to practical results'. [5] The Government then stated its preference for the concepts of self-management and self-empowerment rather than self-determination.

Historically, the term self-determination was first applied to Indigenous policy by the Whitlam government in 1972. It replaced the by then largely discredited policy of assimilation. The most immediate impact of the adoption of the language of self-determination was to unequivocally reject the paternalism of policies of the past. It was a statement of the practical reality that assimilation simply didn't work.

There is some continuity in language of the current Government's approach with that of the Fraser government from 1975. Upon election it had 'retreated somewhat from the rhetoric of self-determination in Australian Indigenous policy, preferring instead the term "self-management"… with an emphasis on responsibilities as much as, if not more than, on rights'.[6] The retreat was, however, largely symbolic 'as it overlay a continuity of institutional development' [7] and reform of Indigenous policy and programmes, most notably in the development of Indigenous community organisations and through the introduction of land rights legislation in the Northern Territory.

The Hawke and Keating governments both used the term self-determination almost interchangeably with that of self-management through the 1980's and early 1990's. By 1992, however, all Australian governments officially endorsed self-determination as the basis of policy development in responding to the recommendations of the Royal Commission into Aboriginal Deaths in Custody. This was reinforced through the Council of Australian Government's 1992 National Commitment to improved outcomes in the delivery of programs and services for Aboriginal peoples and Torres Strait Islanders which established as a guiding principle for service delivery by all levels of government the 'empowerment, self-determination and self-management by Aboriginal peoples and Torres Strait Islanders'.[8]

In light of this broad acceptance of self-determination by Government for just under thirty years, the question that has to be asked is how have we now reached the situation where the Government has rejected self-determination on the basis that it is purely a matter of 'symbolism' divorced from the day to day lives of Indigenous peoples in this country?

In my view, there are four main answers to this question. The first is political in nature - that the concept of self-determination has never transcended its historical roots in Australia. Self-determination has in many ways been defined by what it is not, i.e. assimilation, with an occasional lack of clarity as to what people actually mean when they use the term. For many it has become a political slogan and a rhetorical device.

In its 1972 version, self-determination has been synonymous with a notion of community control or empowerment. It saw a shift from a situation of total control by government, with limited flexibility and involvement of Indigenous people in decision-making processes, to the other extreme of simply handing over control to Indigenous communities and organisations, with limited focus on accountability to government or back to that community. In some ways we have not moved beyond this 1972 concept, which may also explain why critics of self-determination so often and so easily revert to assimilationist ideology in identifying the way forward.

The second reason is more institutional in nature - a bureaucratic version of self-determination has been imposed on communities, often fitting them into a different straight-jacket for service delivery and decision-making to the one that previously existed. This version has required Indigenous communities to incorporate as associations in order to receive the necessary funding grants. The result in many communities is a plethora of separate organisations each established to meet usually just one particular need of the community, who are continually required to submit numerous separate funding grant applications in order to receive short term funding for their activities. It has resulted in uncoordinated service delivery that administratively has been highly inefficient, which has not allowed communities to plan their activities in a coordinated, holistic and longer term manner. This version of self-determination has also seen communities 'handed' control and resources through this new organisational sector with limited efforts to develop their institutional capacity to manage and control the process effectively.

The third reason is that, while this bureaucratic version of self-determination may have overseen the vast development of an Indigenous community sector, it has left Indigenous communities tied to the control of government. It has been a largely rhetorical version of self-determination which has maintained the existing power balances and ensured that the control mechanisms are retained by governments. Institutional reform has been limited to the creation of new layers of bureaucracy. It has to a large extent, and with some exceptions, not extended to changes in the structure and responsibilities of the institutions of government.

The fourth reason is that for all the commitments to self-determination, such as through COAG's 1992 National Commitment and the responses to the Royal Commission into Aboriginal Deaths in Custody, these were in reality never implemented. Self-determination as the centre-piece of Indigenous policy has to a large extent been a statement of intention rather than of action. Real self-determination has never been tried.

From this we can see the basis of why the former Minister for Aboriginal and Torres Strait Islander Affairs described the policy of self-determination as the 'politics of symbolism'. It is wrong, however, to suggest that self-determination is purely symbolic. It has been Government's attempts to implement it that has been symbolic and that has distanced aspirations for self-determination from the real issues.

There clearly remains an ongoing need for the policy approaches of Government to break from the past - but this does not mean discarding self-determination as a relic of that past. Instead, we need to address the deficiencies in the implementation of self-determination over the past thirty years. We need to reconceptualise self-determination and restore meaning and content to it.

(Re-)Defining self-determination

Self-determination means the freedom for indigenous peoples to live well, to live according to their own values and beliefs, and to be respected by their non-indigenous neighbours… [Indigenous peoples'] goal has been achieving the freedom to live well and humanly - and to determine what it means to live humanly. In my view, no government has grounds for fearing that. [9]

Professor Erica-Irene Daes, Former Chair - United Nations Working Group on Indigenous Populations

In this section I provide a detailed discussion of the key features of self-determination as it has evolved in international law to date. While debate on the application of self-determination to the situation of Indigenous peoples remain among the most difficult and controversial currently taking place in any area of the United Nations, there are a number of features about this right that are now established in international law. There are also a range of social and political matters which are also of relevance in understanding self-determination. They are of great assistance in evaluating the adequacy of the current approach to policy formulation in Australia, as well as in explaining the key sticking points in debate over the recognition of Indigenous self-determination in international negotiations.

The right of self-determination is Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Australia is a party to both of these covenants and is bound to act in compliance with their terms. Common Article 1 reads as follows.[10]

Article 1

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realisation of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

Article 1 appears simple in its formulation. It is, however, full of complexities. The Article does not define self-determination. It also does not identify the forms it may take. In terms of whom it applies to, Article 1 states that self-determination is a right of 'all peoples'. There is, however, no internationally agreed definition of a 'peoples'.

While the lack of definition on these points may be frustrating to some, it has ensured that the concept of self-determination has not been frozen in time and has been able to evolve to changing global circumstances. Debates about the application of self-determination to Indigenous peoples, for example, move us beyond the de-colonisation framework of the post-world war two period. This debate would not have taken place if more closed definitions had been taken in Article 1.

Article 3 of the Draft Declaration on the Rights of Indigenous Peoples seeks to declare that Indigenous peoples are in fact a 'peoples' within the meaning of the term. It states:

Article 3

Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

This proposed language is identical to that in Article 1(1) of the two international covenants, with the substitution of the phrase 'indigenous peoples' for 'all peoples'. As noted, Article 3 (and the Draft Declaration) is still under negotiation at the United Nations and has not been adopted as yet. There are, therefore, two main processes for the recognition of Indigenous self-determination internationally: first, by recognising Indigenous peoples as 'peoples' under Article 1 of the covenants and second, by declaring that Indigenous peoples possess the right through Article 3 of the Draft Declaration.

While there are a range of other Articles in the Draft Declaration that elaborate on the dimensions of this right to self-determination, the following two Articles have been of particular importance in international negotiations defining the scope of Indigenous self-determination.

Article 31

Indigenous peoples, as a specific form of exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, including culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resources management, environment and entry by non-members, as well as ways and means for financing these autonomous functions.

Article 45

Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations.

Much of the international debate about self-determination in relation to Indigenous peoples has revolved around the wording of Article 3 and its relationship to these (and other) Articles. Given that Indigenous peoples' right to self-determination can separately be recognised within the framework of the two international covenants, and noting that a number of governments are currently attempting to explicitly place limitations on the right of self-determination within Article 3, it is important to note that the Draft Declaration also provides that:

Bearing in mind that nothing in this Declaration may be used to deny any peoples their right of self-determination…

Article 44

Nothing in this Declaration may be construed as diminishing or extinguishing existing or future rights indigenous peoples may have or acquire.

There are two main areas of debate about the provisions of the Draft Declaration as well as about the application of the provisions of the international covenants. First, is whether Indigenous peoples are entitled to a right of self-determination. Second, if they are, what is the content of that right and what are the limitations on its exercise (or put simply, what is Indigenous self-determination?).

a) Do Indigenous peoples have a right to self-determination?

There have been three main processes involving government decision-making at the international level which have sought to grapple with the issue of whether Indigenous peoples have a right to self-determination over the past twenty five years. Two of these processes - the Organisation of American States negotiations on a proposed American Declaration on the Rights of Indigenous Peoples and the International Labour Organisation's negotiation of Convention No. 169 - have delayed answering the question by using a disclaimer that the use of the term 'peoples' in the declaration or convention respectively shall not be construed as having any implications as regards the rights which may attach to the term under international law. The third process directly considering this issue is the negotiations on the Draft Declaration on the Rights of Indigenous Peoples. Political recognition of the application of self-determination to Indigenous peoples by the governments of the world remains forthcoming in this process.

By contrast, there have been two main developments through the independent, expert bodies of the United Nations that suggest that Indigenous peoples do have a right to self-determination.

First, recent practice by the United Nations Human Rights Committee and the United Nations Committee on Economic, Social and Cultural Rights (i.e., the two committees that operate under and interpret the standards in the two international covenants) clearly identifies self-determination as a right held by Indigenous peoples, including in Australia. This can be seen from the following concluding observations and jurisprudence of the committees.

Human Rights Committee (HRC)

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

Concluding observations on Canada, Un Doc: CCPR/C/79/Add.105, 7/4/99, paras 7,8.

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

Concluding observations on Sweden, UN Doc: CCPR/CO/74/SWE, 24/4/2002, para 15;

Lubicon Lake Band v Canada (1990) Un Doc: CCPR/C/38/D/167/1984; and

Marshall (Mikmaq Tribal Society) (1991) UN Doc: CCPR/C/43/D/205/1986.

Committee on Economic, Social and Cultural Rights (CESCR)

List of Issues: Australia, UN Doc: E/C.12/Q/AUSTRAL/1, 23/05/2000, Issue 3: 'What are the issues relating to the rights of Indigenous Australians to self-determination, and how have these issues impeded the full realisation of their economic, social and cultural rights?'

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

Concluding observations on Columbia, UN Doc: E/C.12/1/Add.74, 30/11/2001, paras 12, 33.

The second development which lends support to the position that Indigenous peoples constitute a 'peoples' under international law is in relation to the categorisation of Indigenous peoples as distinct in status from minorities. This has taken place through a variety of studies and processes within the United Nations over the past thirty years.

Some of the issues that the UN has had to face in this regard have included whether minorities should be considered 'peoples' within the terms of the UN charter; whether Indigenous Peoples are 'peoples' or 'minorities'; and if Indigenous peoples are not 'minorities', what rights should be accorded them? [11]

Historically, the early decades of the United Nations saw significant attention to and acceptance of the importance of promoting self-determination and the protection of human rights for the purpose of maintaining peace and friendly relations between nations. Despite this, until the 1970s the United Nations had devoted very little attention to the application of these principles to the situation of Indigenous peoples and of minorities within nations.

Sharon Venne has argued that developments relating to self-determination up to the 1970s - such as General Assembly Resolution 1514 [12] (the Declaration on the Granting of Independence to Colonial Countries and Peoples) and General Assembly Resolution 2625 [13] (the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations) in particular - have resulted in 'a double standard and unequal application of the principles as set down by the General Assembly' [14] for Indigenous peoples. This is by creating an artificial distinction between the colonialism that they have suffered and other forms of colonialism to which the decolonisation process applies.

Since that time, there have been five major reports prepared by Special Rapporteurs to the Sub-Commission on the Protection and Promotion of Minorities that have considered these issues.[15] These are the reports by the Special Rapporteurs Critescu (1976), Capotorti (1979), Gros Espiell (1980), Deschenes (1985) and Cobo (1987).

In the first major study of the right of self-determination, conducted by Special Rapporteur Aureliu Cristescu, it was concluded that no distinction between 'peoples' and 'indigenous peoples' could be found. He acknowledged that Indigenous peoples, such as in the Americas, are appropriate peoples to whom the right of self-determination as a legal principle should be applied, and stated that 'the struggle against colonialism is the most important field of application of the principle of equal rights and self-determination of peoples'.[16]

A subsequent study on self-determination and its relationship to the implementation of UN resolutions was completed by Special Rapporteur Hector Gros Espiell in 1980. He noted that self-determination 'is a right of peoples, in other words of a specific type of human community sharing a common desire to establish an entity capable of functioning to ensure a common future'.[17] On this basis he concluded that 'under contemporary international law minorities do not have this right'. [18]

Difficulties remained however due to the lack of definition of the term 'minorities'. Studies were subsequently completed by Francesco Capotorti in 1979 on the right of persons belonging to ethnic, religious and linguistic minorities [19] and Mr Justice Jules Deschenes in 1985 on the definition of minorities. [20] In both studies definitions of 'minority' were proposed, although no definition has been adopted internationally. Around the same time, Jose Martinez Cobo was undertaking his landmark study on the problem of discrimination against Indigenous populations, where he was grappling with issues of definition of Indigenous peoples.

Ultimately no official definition of Indigenous peoples was adopted, with Cobo agreeing with Indigenous peoples that the imposition of a definition may be limiting and potentially wrongly exclude some people from having their indigenous origin recognised. He reiterated self-identification as a fundamental aspect of Indigenous peoples' right to self-determination. Cobo did, however, offer a working definition as follows:

Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them. They form at present, non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal system. [21]

In looking to develop a definition of 'minority' Justice Deschenes looked to this definition of Indigenous peoples to see whether the categories of minorities and Indigenous peoples could be combined. While he acknowledged that there are a number of characteristics shared between the two groups he ultimately concluded that there were aspects of the situation of Indigenous peoples that were unique and that the description of Indigenous peoples could not be used as 'a general definition of minorities'. He continued:

it would seem appropriate... to include indigenous peoples as a separate category and pay attention to their specific needs and rights. Indigenous peoples do not necessarily constitute minorities and their situation is in many respects different from that of national, ethnic, religious and linguistic minorities.[22]

In a recent working paper on the relationship and distinction between the rights of persons belonging to minorities and those of Indigenous peoples, Asbjorn Eide looks at developments in the international system that have taken place since these studies. The findings of these studies were largely followed with the consequence that 'a dual track has emerged in United Nations standard-setting with regard to minorities and indigenous peoples'.[23]

This is demonstrated by examining the four sets of rights that have emerged in the international human rights system to date. These are:

a) The general, [individual]… human rights to which everyone is entitled, found in the Universal Declaration on Human Rights and elaborated in subsequent instruments, such as the two International Covenants of 1966…

b) The additional rights specific to persons belonging to national or ethnic, religious or linguistic minorities, found in Article 27 of the International Covenant on Civil and Political Rights (ICCPR), the Declaration on the Rights of Persons belonging to National or Ethnic, Religious or Linguistic Minorities ("Minority Declaration"), and in several regional instruments dealing with the rights of persons belonging to minorities. They are formulated as rights of persons and therefore individual rights. States have some duties to minorities as collectivities, however…[24]

Special minority rights can be claimed by persons belonging to national or ethnic, linguistic or religious minorities, but also by persons belonging to indigenous peoples. The practice of the Human Rights Committee under Article 27 of the ICCPR bears this out…[25]

c) The special rights of indigenous peoples and of indigenous individuals, found in the ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries (No. 169) and - if and when adopted - in the Draft Declaration on the Rights of Indigenous Peoples ("draft indigenous declaration"), adopted by the Working Group on Indigenous Populations (WGIP) in 1993 and now before the Commission on Human Rights. They are mostly rights of groups ("peoples") and therefore collective rights…[26]

The rights of indigenous peoples, which, under present international law, are found only under ILO Convention No. 169, can only be asserted by persons belonging to indigenous peoples or their representatives. Members of non-indigenous minorities cannot assert the(se) rights...[27]

d) The rights of peoples as provided for in common Article 1 to the two International Covenants of 1966. These are solely collective rights...[28] There is still no consensus as to which collectivities are the beneficiaries of the right to self-determination under Article 1.[29]

The specific rights of minorities and indigenous peoples that have been recognised are qualified by the requirement that their enjoyment shall not prejudice the enjoyment by all persons of the universally recognised human rights and fundamental freedoms (in category a) above). In other words, while there are specific rights to protect the distinct cultural characteristics of minorities and Indigenous peoples there is no scope for them to do so to the detriment of other people or to impede the rights of individuals within those groups.

Asbjorn Eide identifies significant differences in the development of minority rights as opposed to Indigenous rights in the international system. He states:

The difference can probably best be formulated as follows: whereas… instruments concerning persons belonging to minorities aim at ensuring a space for pluralism in togetherness, the instruments concerning indigenous peoples are intended to allow for a high degree of autonomous development. Whereas [minority rights place]… considerable emphasis on effective participation in the larger society of which the minority is a part…, the provisions regarding indigenous peoples seek to allocate authority to these peoples so that they can make their own decisions… The right to participation in the larger society is… given a secondary significance and expressed as an optional right. Indigenous peoples have the right to participate fully, if they so choose, through procedures determined by them, in devising legislative or administrative measures that may affect them… The underlying assumption must be that participation in the larger society is not necessary when they have full authority of their own to make the relevant decisions.

Closely linked to this point is the difference concerning rights to land and natural resources. [Minority rights]… contain no such (recognition), whereas these are core elements (of indigenous rights). Other examples could be mentioned to explain the fundamental difference between the thrust of the rights of persons belonging to minorities and those of indigenous peoples. It is logically connected to the basic point that the minority instruments refer to rights of (individual) persons, whereas those concerning the indigenous refer to rights of peoples. [30]

In answering the question of the relationship between minority rights and the rights of Indigenous peoples, on the one hand, and the rights of peoples to self-determination as set out in common Article 1 to the International Covenants on the other hand (i.e. who is entitled to category d) above), he notes:

For the rights of persons belonging to minorities, the answer is simple: the relevant instruments provide no right to group (collective) self-determination. The rights of persons belonging to minorities are individual rights, even if they in most cases can only be enjoyed in community with others.[31]

These developments can be summarised as follows:

1. The rights of persons belonging to minorities have developed by focusing on individual rights and in a way that does not recognise a collective status as 'peoples'. International law has not recognised a right to self-determination for minorities.

2. By contrast, the rights of Indigenous peoples have developed in a way that recognises that they are distinct from minorities and that a key reason for this is that they possess a collective status.

3. This leads to the irresistible conclusion that Indigenous peoples are in fact 'peoples' within the context of Article 1 of the international covenants. Some UN studies have concluded as such.

4. This conclusion has also been reached by the Human Rights Committee and the Committee on Economic, Social and Cultural Rights, i.e. the two committees operating under the international covenants.

5. Based on these factors, the contention that Indigenous peoples constitute a 'peoples' and possess the necessary collective identity to be recognised as enjoying a right to self-determination can no longer be challenged with any legitimacy or credibility.

6. The ongoing debates over Article 3 of the Draft Declaration, the Organisation of American States Draft Declaration and the provisions of ILO Convention 169 indicate, however, that States have not yet accepted this conclusion.

b) What is Indigenous self-determination?

So what is Indigenous self-determination? And does international law place any limitations on its exercise and if so, what are they?

An international conference of experts was convened by UNESCO in 1998 to consider the role of self-determination in preventing conflict and contributing to peace and security. It developed the following description of self-determination.

[Self-determination is] an ongoing process of choice for the achievement of human security and fulfilment of human needs with a broad scope of possible outcomes and expressions suited to different specific situations. These can include, but are not limited to, guarantees of cultural security, forms of self-governance and autonomy, economic self-reliance, effective participation at the international level, land rights and the ability to care for the natural environment, spiritual freedom and the various forms that ensure the free expression and protection of collective identity in dignity.[32]

This description identifies a number of salient features of Indigenous self-determination. Primary among these is the recognition that self-determination is a process for the achievement of human security and the fulfilment of human needs. In the words of the UNESCO conference:

Peoples and communities strive to gain control over the means to satisfy the human needs of their members. The most important of these are the needs for human security and welfare. By security, in this view, is included economic, health, environmental and food security as well as security of the person from physical violence, communal security (in terms of cultural integrity) and political security, meaning respect for human rights and freedoms. Thus, a variety of means, political structures and arrangements can be conceived which would satisfy the human needs of communities and their members.[33]

There is an objective dimension to the provision of such security which is reflected in the institutional processes that are put in place in accordance with the exercise of self-determination. But there is also a subjective element to the attainment of such security:

Especially for peoples who have been disenfranchised, oppressed… etc. the need for security can be a prime objective in the struggle for self-determination…[For example, ] culture, being a core element of distinctiveness of peoples… is often at the centre of a claim for self-determination when the cultural identity and expression of the community is suppressed or threatened. Respect for distinct cultural values and diversity is fundamental to the notion of self-determination. For some communities the recognition within the state of the value and distinctiveness of a group can be an expression of the implementation of their right to self-determination. For others, the authority and capability to exercise full cultural authority within a set territory (or to exercise it in a non-territorial manner) is an essential component of their exercise of self-determination.[34]

This subjective element of self-determination should not be under-estimated. As Erica-Irene Daes notes:

Self-determination means the freedom for indigenous peoples to live well, to live according to their own values and beliefs, and to be respected by their non-indigenous neighbours… The protection of this freedom unquestionably involves some kind of collective political identity for indigenous nations and peoples, i.e. it requires official recognition of their representatives and institutions. However, the underlying goal of self-determination for most indigenous peoples has not been the acquisition of institutional power. Rather their goal has been achieving the freedom to live well and humanly - and to determine what it means to live humanly…

It is important that we must try to guard against a kind of false consciousness with respect to achieving the true spirit of Indigenous self-determination… the true test of self-determination is not whether indigenous peoples have their own institutions, legislative authorities, laws, police and judges. The true test of self-determination… is whether Indigenous peoples themselves actually feel that they have choices about their way of life. The existence of a genuine right to self-determination cannot be only determined from the outward form of indigenous peoples' self-governing or administrative institutions. The true test is a more subjective one which must be addressed by indigenous peoples themselves. [35]

Accordingly, essential to the exercise of self-determination is choice, participation and control. As the International Court of Justice notes in its Advisory Opinion on Western Sahara, the essential requirement for self-determination is that the outcome corresponds to the free and voluntary choice of the people concerned. [36]

It follows that a further essential feature of self-determination is that it does not have a prescribed or pre-determined outcome. There are as many outcomes possible as there are ways of governing, exercising control and administering decisions. This may involve the exercise of choice by an Indigenous group 'to cede their right to make decisions' [37] over particular issues or alternatively the choice to maintain decision-making and control within the community.

Similarly, self-determination is a process that is ongoing. It is not a one off event or something that is defined as at a particular moment in history:

Self-determination should not be viewed as a one time choice, but as an ongoing process which ensures the continuance of a people's participation in decision-making and control over its own destiny… This view makes it possible for incremental changes to be implemented rather than forcing parties to agree on definitive changes which can be too radical for some and insufficient for others. Rather, it should be seen as a process by which parties adjust and re-adjust their relationship, ideally for mutual benefit. [38]

Self-determination therefore requires first, that a State acknowledges that there exists within, perhaps crossing, its borders a distinct group who legitimately have claims to recognition as a 'peoples'; and second, that the State agrees to enter a relationship with that group on the basis of equality and mutual respect, to negotiate the basis of that group's engagement and participation in the society.

What is apparent from these features is that a notion of popular participation is inherent to self-determination. As the Australian delegation stated to the United Nations General Assembly in 1992:

Realisation of the right to self-determination… entails the continuing right of all peoples and individuals within each nation State to participate fully in the political process by which they are governed. Clearly, enhancing popular participation in this decision-making is an important factor in realising the right to self-determination. It is evident that, even in some countries which are formally fully democratic, structural and procedural barriers exist which inhibit the full democratic participation of particular popular groups.[39]

There are a number of issues relating to the type of participation that is integral to the realisation of self-determination in democratic countries like Australia. The first goes to the core of the meaning of democracy. There is a tendency - which has been particularly exacerbated in Australia in the past eighteen months - to equate democracy solely with majority rule. Indigenous peoples, who make up 2% of the total population, can never be part of this majority and are subject to the goodwill of the rest of the society. The suggestion that democracy means solely majority rule, however, is a fallacy - it is not one of the basic democratic principles but instead 'a second best procedural device for settling disagreement when other methods have been exhausted'. [40] Clearly, Indigenous peoples' right to self-determination is not safeguarded or respected by a reliance on majority rule. Self-determination raises the issue of representativeness and participation within the democratic principle.

The second issue is that of the existence in democratic societies of 'structural and procedural barriers' which may act to inhibit full participation. As I noted in the Social Justice Report 2000, one of the ongoing impacts of the past treatment of Indigenous peoples in Australia is the fact that the historic 'lack of respect for, and failure to recognise the value of, Indigenous cultures permeates the design of the institutions of society and government' [41] today.

The existence of such institutional barriers in Australia has been identified in numerous government reports. Most recently, it was graphically illustrated by the inaccessibility of mainstream government services to Indigenous peoples that was uncovered by the Commonwealth Grants Commission's report on Indigenous funding.

Such institutionalised barriers, however, can be masked by commitments to democratic ideals - such as commitments to formal equality of treatment. As Dr Y Kly notes:

In situations of minority oppression, racism and discrimination is usually given by States as the reason for the maldevelopment of such non-dominant nations relative to dominant nations in multinational states, and the solution voiced by many governments is simply non-discrimination, as politically defined by the state concerned. There is little or no comment on the need for or type of institutional changes and special measures or self-determination as is sought in… the indigenous situation…

Many multinational states wishfully take great pride in their melting pot assimilationist policies or tradition as proof of their commitment to non-discrimination - as defined by them. But there can be a gross contradiction between non-discrimination as politically defined by most states, and melting pot policies or traditions which may often serve as a linguistic euphemism and cover for what can in reality be more accurately defined as the forced assimilation of nations, minorities and indigenous peoples, and the resultant retardation of their social-economic and cultural development…

Where minority resistance is limited, such as in the situation of… indigenous people, melting pot policies themselves, when enforced by government in conjunction with societal institutions, may become a chief reason for institutional and systemic racial discrimination… This leaves groups open to an almost unlimited assault on their human dignity, values, community cohesion and economic independence, reducing the individual member of such groups to a state of almost complete dependency in all societal sectors, where his/her success is measured in terms of majority-dominated processes and norms.[42]

As I also noted in the Social Justice Report 2000 a commitment to equality that extends no further than sameness of treatment confirms 'the position of Indigenous people at the lowest rungs of Australian society. Demands for identical or 'sameness' of treatment are tantamount to 'keeping us in our place'.[43] The nature of participation and representativeness required by self-determination necessitates going beyond such sameness of treatment and to strive for institutional innovation.

There are further implications flowing from this requirement for States to be representative and facilitate popular participation. Ultimately, the maintenance of the territorial integrity of the State is linked to respect for self-determination.

This can be seen from the Declaration on the Granting of Independence to Colonial Countries and Peoples (1960), the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (1970) (the Friendly Relations Declaration),[44] and the Vienna Declaration and Programme of Action of the World Conference on Human Rights (1993). The Friendly Relations Declaration states, for example, that the recognition of the right of all peoples to self-determination shall not:

be construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principles of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.

As Erica-Irene Daes notes:

The meaning of the aforesaid provisions is plain. Once an independent State has been established and recognised, its constituent peoples must try to express their aspirations through the national political system, and not through the creation of new States. This requirement continues unless the national political system becomes so exclusive and non-democratic that it no longer can be said to be 'representing the whole people'. At that point, and if all international and diplomatic measures fail to protect the peoples concerned from the State, they may perhaps be justified in creating a new State for their safety and security. Indeed, in such a state of affairs, legal arguments cease to have any real significance since peoples will defend themselves by whatever means they can. Continued government representivity and accountability is therefore a condition for enduring enjoyment of the right of self-determination, and for continued application of the territorial integrity and national unity principles.[45]

There are two consequences of this. First, States have a responsibility to be representative and accountable in accordance with the right of self-determination. Second, territorial integrity will be guaranteed so long as they meet these obligations.[46]

Article 45 of the Draft Declaration on the Rights of Indigenous Peoples was quoted at the beginning of this section. It has the effect of qualifying the recognition of Indigenous self-determination in Article 3 of the Draft Declaration by making it subject to the provisions of the Friendly Relations Declaration (among others). This means that, subject to these conditions, the recognition of Indigenous self-determination through the Draft Declaration is qualified in a way that guarantees the territorial integrity of States.[47]

A source of government fears about secession and territorial integrity is the implications of recognising Indigenous peoples' relationship to traditional lands and resources. In many instances this is one of the most significant institutional barriers to the realisation of Indigenous self-determination. As Erica-Irene Daes notes in her final report on Indigenous Peoples and their relationship to land:

it is difficult to separate the concept of indigenous peoples' relationship with their lands, territories and resources from that of their cultural differences and values. The relationship with the land and all living things is at the core of indigenous societies… [There is an] urgent need for understanding by non?indigenous societies of the spiritual, social, cultural, economic and political significance to indigenous societies of their lands, territories and resources for their continued survival and vitality.[48]

In particular, there are four key elements which are unique to Indigenous peoples relationship to land:

(i) a profound relationship exists between indigenous peoples and their lands, territories and resources; (ii) this relationship has various social, cultural, spiritual, economic and political dimensions and responsibilities; (iii) the collective dimension of this relationship is significant; and (iv) the intergenerational aspect of such a relationship is also crucial to indigenous peoples' identity, survival and cultural viability.[49]

Respect for Indigenous peoples' relationship to land and resources is an integral component of self-determination, from an economic, social, political and cultural dimension.

This relationship to land can ordinarily, in my view, be recognised without impacting on the territorial integrity of the State. Asbjorn Eide usefully explains why by differentiating between territorial autonomy and what he terms cultural autonomy:

Conceptually and in practice, territorial autonomy should be kept separate from cultural autonomy… Generally, it is difficult to accept a principle of territorial autonomy based strictly on ethnic criteria, since this ran counter to the basic principles of equality and non-discrimination between individuals on racial or ethnic grounds. There are, on the other hand, strong arguments in favour of forms of cultural autonomy which would make it possible to maintain group identity. What is special for indigenous peoples is that the preservation of cultural autonomy requires a considerable degree of self-management and control over land and other natural resources. This requires some degree of territorial autonomy. The scope of and limits to such autonomy are difficult to specify, however, both in theory and on the ground in specific cases.[50]

This leads us to discussion of the main concern of States about Indigenous self-determination - the possibility that it could lead to secession or the creation of separate Indigenous states. Many governments participating in negotiations on the Draft Declaration on the Rights of Indigenous Peoples do not oppose recognition of Indigenous self-determination per se. Instead, they challenge the content and form that Indigenous self-determination might take by seeking to:

guarantee that its recognition will not affect their territorial integrity;
place limitations on its definition by recognising Indigenous peoples' right to internal (as opposed to external) self-determination; or
limit its recognition to situations of autonomy by attempting to re-draft Article 31 of the Draft Declaration (quoted at the beginning of this section) so that it reflects autonomy as the maximum form of self-determination that can be recognised rather than as an illustration or 'a specific form' of Indigenous self-determination.

What underlies each of these positions is concern that recognition of Indigenous self-determination will provide legitimacy to claims of secession or the creation of separate Indigenous states. Governments seek guarantees that this will not take place.

Secession is an extreme expression of self-determination and one that will only occur in the rarest of cases when all other processes have failed. It cannot be absolutely discounted as a possible expression of self-determination. The situation in East Timor is an excellent example of why it should not be discounted. As the UNESCO conference noted:

In the broader context of self-determination, separation or secession from the state of which a people forms a part should be regarded as a right of last resort. Thus, if the state and its successive governments have repeatedly and for a long period oppressed a people, violated the human rights and fundamental freedoms of its members, excluded its representatives from decision-making especially on matters affecting the well-being and security of the person, suppressed their culture, religion, language and other attributes of the identity valued by the members, and if other means of achieving a sufficient degree of self-government have been tried and have clearly failed, then the question of secession can arise as a means for the restoration of fundamental rights and freedoms and the promotion of the well-being of the people... People and communities may attempt to secede because independent statehood appears to them to form the only means of obtaining the level of freedom and security which they aspire to…[51]

There are six main problems with the concerns expressed by governments as they relate to secession. The first is that the approach of governments is ultimately a pragmatic and political one. They do not argue that Indigenous peoples are not entitled to self-determination as a matter of law. Instead they look immediately to the most extreme potential impact of the exercise of that right on the status quo. It is a political preference to preserve the status quo.

The second is that the fear of secession immediately conflates Indigenous self-determination with the concept of state-hood. Indigenous peoples' aspirations are cast in terms of the most extreme form of self-determination, the creation of separate states. This is a fundamentally flawed approach. As noted above, there are a range of international declarations which protect the territorial integrity of states who meet their obligations to citizens.

The equation of self-determination with secession is made without reference to the existing state of international law and without an eye to history. Consequently, it is an assumption that is 'neither legally correct nor politically necessary, and… dangerously counter-historical in a world now beset by inter-group conflicts far more complex than those the UN faced or fathomed at the end of World War II'.[52]

The third broad factor is that this approach simply lacks reality. We need only look to the struggle of the East Timorese to know that international recognition of statehood requires more than recognising a peoples' entitlement to self-determination. In Australia, for example, the absence of any conflict or political movement for secession by Indigenous peoples is an obvious indicator of the lack of reality, indeed the absurdity, of any such claims.

The fourth factor is the one of overarching concern. As Mililani Trask has noted, the attempts to explicitly place limitations upon Indigenous peoples' right to self-determination through the Draft Declaration - where limitations apply to no other peoples - places at stake the fundamental basis of the entire international human rights system. Suggestions that Indigenous self-determination be qualified to guard against secession mean that:

There is a crisis emerging in the field of human rights… At stake is nothing less than the fundamental principle that human rights are universal. The Charter of the United Nations, the Universal Declaration of Human Rights and the International Human Rights Conventions are founded upon this principle.[53]

The fifth factor is that fears of secession by governments overlook the fact that self-determination is not self-executing, unilateral or absolute in its application and that it is a process of engagement and negotiation. When balanced against principles such as the protection of territorial integrity, the international community is highly unlikely to recognise secessionist movements in States that are conducting themselves in good faith.

The sixth factor is that for over twenty years in the Working Group on Indigenous Populations, and in each session of negotiations on the Draft Declaration, Indigenous peoples have indicated that generally they do not aspire to secession. In the Australian context, Indigenous peoples are so numerically inferior and geographically dispersed that it is nonsense to suggest that the creation of separate states would be feasible. Indeed, in those areas of Australia where Indigenous peoples are most numerous, culturally distinct and have greater access to traditional land and resources - such as the Northern Territory and Torres Strait - recent processes indicate that there are no proposals on intentions for separatism.[54] At no stage have any Indigenous Australians participating in international negotiations on self-determination suggested that secession is a realistic option.

The fear of governments of secession is not soundly based in existing law or indeed in political reality. It has been suggested that to broach this impasse will require States to take a leap of faith and take Indigenous peoples at their word. This may be so, but it is an extremely kind way of referring to the actions of States to date. Instead, I would suggest that what is required is for governments to stop acting in bad faith by equating self-determination with secession.

Government fears of secession have also led to suggestions that Indigenous self-determination should be limited to internal dimensions, as opposed to external dimensions. There is, in my view, no justification for imposing an arbitrary restriction to internal self-determination on Indigenous peoples. The participation of Indigenous peoples in UN processes and in negotiations on the Draft Declaration on the Rights of Indigenous Peoples demonstrates that there are other external dimensions of Indigenous self-determination to secession. The UNESCO conference also notes that:

The external aspect of the right to self-determination is generally considered to be the right to separate from the existing state. But there are other external aspects which are of considerable relevance to the exercise of self-determination, but which do not necessarily entail the creation of an independent state…

Indigenous peoples… consider it important to participate in decision-making processes at national and international levels relating to the conservation of nature or its exploitation. By the same token, any people or community may consider it of importance to include in its exercise of self-determination the authority to participate in international discussions or be included in international organisations where decisions are taken that affect core aspects of their existence and development. This could include participation… in regional organisations (examples include the Sami Council's membership in the Nordic Council and the Circumpolar conference), global organisations (the establishment of a Permanent Forum for Indigenous Peoples within the United Nations system could be an example of such participation) or in cultural or religious organisations…[55]

It is unfortunate that the debate on the implications for secession of the recognition of Indigenous self-determination has not moved beyond the discussion of these matters in the Cobo study on the problem of discrimination against indigenous populations, undertaken throughout the early 1970s and 1980s. In his final report and recommendations, Cobo stated:

The unity which is a legitimate concern of many States, particularly those that have recently acceded to independence, can be achieved most fully and profoundly through a genuine diversity which respects differences between existing groups aspiring to a distinct identity within society as a whole. The desired unity will be achieved more fully if it is based on diversity, rather than an imposed uniformity inconsistent with the genuine feelings of the population. Within that diversity, each group would participate more fully since it would do so on the basis of its own conceptions, values and patterns, rather than attempting to use modes of expression which are foreign to it.[56]

Ultimately it is my view that the debate about Indigenous self-determination through the processes of the United Nations has become protracted and difficult because it exposes and challenges the fundamental flaw of the UN law-making process. Namely, that it is a process that depends on States (or governments) agreeing to set the standards that they will then apply to themselves. In relation to the situation of Indigenous peoples the world over, this means that States have self-interest and illegitimate gains to protect.

The analysis in this section demonstrates that in the international arena, the concerns about applying self-determination to the situation of Indigenous peoples are by and large not matters of law but are largely political matters which reflect the reluctance of States to recognise Indigenous peoples' rights for fear of the potential consequences. At core, the position of governments internationally exposes the gap between theory, legality and the legitimacy of the actions of governments, and the pragmatism of governments.

c) Summary - Defining Indigenous self-determination

In summary, the following factors can be identified about Indigenous peoples' right to self-determination.

1. Self-determination is an ongoing process of choice for the achievement of human security and fulfilment of human needs.

2. Respect for distinct cultural values and diversity is fundamental to the notion of self-determination.

3. The protection of self-determination unquestionably involves some kind of collective political identity for indigenous nations and peoples, i.e. it requires official recognition of their representatives and institutions.

4. Respect for Indigenous peoples' relationship to land and resources is an integral component of self-determination, from an economic, social, political and cultural dimension. A lack of control of traditional lands and resources is often a significant institutional barrier to the realisation of Indigenous self-determination.

5. Self-determination contains a subjective element - it cannot be judged solely from objective criteria. The true test of self-determination is whether Indigenous peoples themselves actually feel that they have choices about their way of life.

6. Essential to the exercise of self-determination is choice, participation and control. The essential requirement for self-determination is that the outcome corresponds to the free and voluntary choice of the people concerned.

7. Self-determination does not have a prescribed or pre-determined outcome.

8. Self-determination is a process that is ongoing. It is not a one off event or something that is defined as at a particular moment in history.

9. A notion of popular participation is inherent to self-determination.

10. In a democracy, Indigenous peoples' right to self-determination is not necessarily safeguarded or respected by a reliance on majority rule. Self-determination raises the issue of representativeness and participation within the democratic principle.

11. The existence in democratic societies of structural and procedural barriers which inhibit the full participation of Indigenous peoples must be recognised. The nature of participation and representativeness required by self-determination necessitates going beyond such sameness of treatment and to strive for institutional innovation.

12. Ultimately, the maintenance of the territorial integrity of the State is linked to respect for self-determination. Numerous UN declarations, such as the Friendly Relations Declaration, limit the exercise of self-determination so that it does not threaten territorial integrity or political unity of States so long as those states conduct themselves in compliance with the principles of equal rights and self-determination of peoples and are representative.

13. Continued government representivity and accountability is therefore a condition for enduring enjoyment of the right of self-determination, and for continued application of the territorial integrity and national unity principles.

14. Article 45 of the Draft Declaration on the Rights of Indigenous Peoples similarly qualifies the recognition of Indigenous self-determination in Article 3 of the Draft Declaration by making it subject to the provisions of the Friendly Relations Declaration (and other UN provisions). Hence, the recognition of Indigenous self-determination through the Draft Declaration is qualified in a way that guarantees the territorial integrity of States.

15. Secession is an extreme expression of self-determination and one that will only occur in the rarest of cases when all other processes have failed. Separation or secession from the State of which a people forms a part should be regarded as a right of last resort.

16. The fear of secession by States immediately conflates Indigenous self-determination with the concept of state-hood. The equation of self-determination with secession is made without reference to the existing state of international law and without an eye to history.

17. In Australia, the absence of any conflict or political movement for secession by Indigenous peoples is an obvious indicator of the lack of reality, indeed the absurdity, of the claim that recognition of self-determination could lead to secession.

18. Self-determination is not self-executing, unilateral or absolute in its application and is a process of engagement and negotiation. When balanced against principles such as the protection of territorial integrity, the international community is highly unlikely to recognise secessionist movements in States that are conducting themselves in good faith.

19. Indigenous peoples have indicated that generally they do not aspire to secession. Examples from Australia indicate that there are no aspirations for secession by Indigenous Australians.

20. The fear by governments of secession is not soundly based in existing law or political reality. What is required for progress in recognition of Indigenous self-determination is for governments to stop acting in bad faith by automatically equating self-determination with secession.

21. There is no justification for imposing an arbitrary restriction to internal self-determination on Indigenous peoples. The participation of Indigenous peoples in UN processes and in negotiations on the Draft Declaration on the Rights of Indigenous Peoples demonstrates that there are numerous external dimensions to their right to self-determination, other than secession.

22. Attempts to qualify the recognition of Indigenous self-determination place the universality of human rights at risk.

The Government's approach to self-determination

So what exactly is the Government's position on self-determination and how does it seek to justify that position?

Since 1999, the Government has made clear that it does not support self-determination as the underlying principle for Indigenous policy development in Australia. The reasons for this, however, are more elusive to track down. As the Government has gone about the task of locking into place its practical reconciliation approach it has simply disengaged on issues that it does not agree with. Consequently, there has been very little effort by the Government to elaborate a detailed position on self-determination. Accompanying this trend has been the tendency for the Government to co-opt language that has traditionally been used in relation to self-determination. An important question that must be addressed therefore is whether their opposition to self-determination is largely rhetorical and simply reflects a preference for a different word, or whether it is a genuine rejection of the legal concept of self-determination.

There are three main ways that we can piece together the Government's overall perspective on self-determination. These are through its response to the reconciliation process; responses to broader debates on Indigenous policy such as the rights agenda, treaty and governance reform; and through international negotiations on the Draft Declaration on the Rights of Indigenous Peoples.

a) Reconciliation

In May 2000, the Council for Aboriginal Reconciliation released its documents of reconciliation. These constituted the actions that they recommended should be taken principally by governments to achieve reconciliation. These documents are the Australian Declaration Towards Reconciliation and the Roadmap to reconciliation. The Roadmap contained summaries of the Council's four, inter-related national strategies for achieving reconciliation: namely, the strategies for overcoming Indigenous disadvantage; achieving economic independence; recognising Aboriginal and Torres Strait Islander rights; and sustaining the reconciliation process. Between May and December 2000, the Council then released expanded versions of the four national strategies detailing the basis for the recommendations contained in the Roadmap as well as identifying key objectives and areas for implementation. The Council's final report titled Australia's Challenge was then released in December 2000. It contained further recommendations for the giving effect to the actions identified in the four national strategies and the Roadmap.

Each of these documents contains recognition of the importance of Indigenous self-determination for the reconciliation process. The Australian Declaration towards Reconciliation, for example, includes the phrase 'And so, we pledge ourselves to stop injustice, overcome disadvantage, and respect that Aboriginal and Torres Strait Islander peoples have the right to self-determination within the life of the nation'. [57]

In the National Strategy for the Recognition of Aboriginal and Torres Strait Islander Rights the Council for Aboriginal Reconciliation identifies the 'formal recognition of the right of Aboriginal and Torres Strait Islander peoples to self-determination within the life of the nation' [58] as an important objective for reconciliation to be achieved. The Council indicated that it 'supports self-determination as the guiding principle for government policy on Aboriginal and Torres Strait Islander affairs at all levels'. [59] Accordingly, the rights strategy recommends that:

A. Governments at all levels acknowledge Aboriginal and Torres Strait Islander peoples' right to self-determination as the basis for policy on Aboriginal and Torres Strait Islander affairs.

B. Governments at all levels enter into negotiations with Aboriginal and Torres Strait Islander peoples in order to realise self-determination goals.

C. Commonwealth Government, ATSIC and Reconciliation Australia work together to promote discussion and education on the meaning of self-determination in the context of Aboriginal and Torres Strait Islander peoples.[60]

The Council explained that 'Aboriginal and Torres Strait Islander peoples never had the opportunity to participate in the nation-building surrounding federation. For Aboriginal and Torres Strait Islander peoples… the need to negotiate this relationship is central to their aspirations. It is often referred to in terms of self-determination'.[61]

The Council also noted, in support of its position, that:

The meaning of self-determination is often confused by references to secession and separate statehood, but such references are unfairly inflammatory and do not reflect Aboriginal and Torres Strait Islander aspirations. Self-determination is much more about the process of decision-making. It reflects the need for Aboriginal and Torres Strait Islander peoples to negotiate a relationship with the Australian Government, which may lead to many outcomes that have the potential to enhance rather then undermine our sense of national unity. It also reflects the kind of autonomy and decision-making that is already being exercised by communities who take responsibility for the delivery of services or programs. That is, self-determination is reflected in the recognition by governments of Aboriginal and Torres Strait Islander peoples right to exercise a sphere of authority and responsibility and the communities' exercise of that right.

In international law self-determination is 'the right of all peoples to freely determine their political status and to pursue their own economic, social and cultural development'. It has its origins in the theory of self-government - that a society should be able to determine for themselves how they are to be governed and to make the decisions that directly affect them. [62]

The Final Report of the Council, titled Australia's challenge, took these proposals one step further. Having acknowledged that Indigenous peoples have been excluded from nation building in Australia, they recommended that:

Each government and parliament recognise that the settlement of Australia took place without consent or treaty and accept the desirability of negotiating agreements or treaties to progress reconciliation, and enter into negotiations to establish a process to achieve this purpose and to ensure adequate protection of the rights of Indigenous peoples (recommendation 5); and
The federal Parliament enact legislation to put into place a process for resolving unfinished business and to commence a treaty or agreement process (a draft Reconciliation Bill was appended to the report as a draft for this purpose)(recommendation 6).[63]

The Government has made clear that it does not accept these proposals by the Council for Aboriginal Reconciliation. It immediately responded to the inclusion of self-determination in the Australian Declaration Towards Reconciliation by releasing its own, alternative version in May 2000. The text of the Council's Declaration reads:

We desire a future where all Australians enjoy their rights, accept their responsibilities, and have the opportunity to achieve their full potential.

And so, we pledge ourselves to stop injustice, overcome disadvantage, and respect that Aboriginal and Torres Strait Islander peoples have the right to self-determination within the life of the nation. [64]

The Government's version, which has no formal status, reads in the alternative:

We desire a future where all Australians enjoy equal rights, live under the same laws and share opportunities and responsibilities according to their aspirations.

And so, we pledge ourselves to stop injustice, overcome disadvantage, and respect the right of Aboriginal and Torres Strait Islander peoples, along with all Australians, to determine their own destiny. (Changes highlighted in italics). [65]

The changes to the Council's text make clear that the acceptance of rights and recognition of culture will not extend to any differential treatment, particularly where this is entrenched in law. They also remove the term self-determination and replace it with the right of Indigenous peoples (in common with all other Australians) 'to determine their own destiny'.

As noted in the progress report on reconciliation in the Social Justice Report 2001, the Government did not otherwise provide reasons for disagreeing with areas of the Council's proposals once the Council's strategies and final report had been released. Their comments indicated that they did not support the concept of a treaty and that they did not accept the rights strategy. On these matters of disagreement, however, they provided no detail as to what in particular they did not accept or why.

Instead, the Government stated in the most general of terms that they acknowledge that there are many areas of agreement between the Government, the community and the Council for achieving reconciliation and noted that there is no one approach to achieving reconciliation. They have then sought to focus attention on those areas where they see substantial agreement, rather than the issues that divide us. This they have done through the catchcry of 'practical reconciliation'.

It was not until September 2002, more than two years after the release of the Council's strategies and 21 months after the Council released its final report, that the Government formally responded to the Council's documents. The response is insubstantial at a mere 23 pages, yet it provides the most extensive engagement by this Government on the issue of self-determination and human rights to date.

In the response, the Government restates that it cannot accept the Council's Declaration and again offers the above alternative formulation on self-determination. On these areas of difference to the Council's Declaration the Government's response states:

The areas of difference between the revised Declaration and the Council's Declaration relate to areas where there remain clear differences of view in the community. For example, the Government is unable to endorse the approach to customary law in the Council's Declaration as the Government believes all Australians are equally subject to a common set of laws. Neither can the Government endorse the term 'self-determination' (which implies the possibility of a separate indigenous state or states) although it unequivocally supports the principle of Indigenous people having opportunities to exercise control over aspects of their affairs (as reflected in the establishment and operation of ATSIC for example)…[66]

The Government also notes that while it cannot commit to the Declaration for these reasons, it is prepared to reaffirm its support for reconciliation as expressed through its Motion of Reconciliation passed by both Houses of Federal Parliament on 26 August 1999. They state that the principles 'expressed in the Motion remain entirely relevant to the Government's continuing commitment to the cause of reconciliation'.[67] The closest the motion gets to anything approaching a commitment to self-determination (or indeed to partnership or consultation with Indigenous peoples on matters that affect them) is a commitment 'to work together to strengthen the bonds that unite us, to respect and appreciate our differences and to build a fair and prosperous future in which we can all share'.[68]

Specifically on the issue of self-determination, the Government's response to the Council's documents states:

The Government supports the principle that Indigenous people should have meaningful opportunities to exercise control over their own affairs… However, the Government is concerned that self-determination is defined by some as representing the right to unilaterally challenge national sovereignty. It carries the implication of a separate Indigenous state or states… The Government prefers the terms self-management or self-empowerment, believing that these terms are consistent with a situation in which Indigenous people exercise meaningful control over aspects of their own affairs in active partnership and consultation with government.

It is the responsibility of government to ensure that all Australians have equality of opportunity and access to services. The Government is concerned that self-determination implies that a government must in some way relinquish responsibility for and control over those aspects of well-being over which it rightly has jurisdiction in common with its responsibility to all Australian citizens... Very importantly, the Government is committed to ensuring that in the process of meeting its obligations to Indigenous people, they are engaged to the maximum extent possible as partners in the design and delivery of services. [69]

In other parts of its response to the Council's documents the Government indicates that while it is prepared to accept that Indigenous culture is diverse and different, it is not willing to recognise that any distinct cultural rights flow as a consequence of such acknowledgement. On this point the Government states:

The Government agrees that all Australians have the right to enjoy in daily life, a fundamental equality of rights, opportunities and acceptance of responsibilities. The Government agrees that the unique status and identities of the Aboriginal and Torres Strait Islander people as the first people of Australia must achieve recognition, respect and understanding in the wider community… The Government recognises that the cultures of Indigenous people are essential to our distinctive character as a nation…

The Government is committed to common rights for all Australians. The Government recognises that many Aboriginal and Torres Strait Islander people have not had the opportunity to enjoy such equal rights in the past because of events that have had a profound impact on Indigenous people. The Government supports additional measures to ensure equality of opportunity where such measures are necessary to overcome specific disadvantages experienced by Indigenous people. Neither the Government nor the general community, however, is prepared to support any action which would entrench additional, specific or different rights for one part of the community. [70]

It is a combination of this point (no special treatment) with the one in the previous quote (concerning the responsibility of Government and control of services) that is the key to understanding the Government's opposition to self-determination. They indicate that the Government sees it as unacceptable that self-determination and the recognition of Indigenous cultural rights could legitimise or create a transfer of power to Indigenous communities. Conceived of in this way, self-determination is cast as an adversary and an opponent to the Government's service delivery role and to the Government's 'practical' reconciliation approach. Framed in this way, the concept of self-determination - and the central role that it seeks to ensure for Indigenous peoples - poses a significant challenge to and could even be seen as the antithesis of the philosophical underpinnings of the Government's approach.

This is also demonstrated by examining Indigenous aspirations in the context of the Government's broader policy framework. In November 2002 the Prime Minister released an important document identifying the long term strategic goals and approach of the Government. Titled Strategic leadership for Australia - policy directions in a complex world, the document identifies what the Government sees as the key strategic issues facing Australia. Indigenous issues are not mentioned at all in this framework. Before identifying what the key strategic directions facing Australia are, however, the document outlines the philosophical underpinnings of the Government's approach to all policy making as follows:

I think all governments need a clear understanding of the values that are important to Australians. And I think governments must identify national priorities so that they can develop coherent, long-term programmes based on these values. I think Australians want from their governments and believe in relation to themselves four important things. Australians do believe in self-reliance. We largely want to be self-reliant individuals with an equal measure of rights and responsibilities. We believe very much in what we call in our own colloquial way a fair go for all Australians. We do want to ensure a equality of opportunity and equality of treatment for all Australians and whatever our starting point, each one of us deserves an equal chance to succeed and a leg up when we hit troubles. We believe in pulling together as a community. And this willingness to unite and help others is ingrained in the Australian culture. And as a government we have a partnership between the Government and the community through the social coalition at the heart of many of our policy decisions. And fourthly we believe in having a go. Australians do rise to the occasion on the sports field, in the boardrooms, overseas, indeed everywhere. And calculated risk taking, creativity and having the courage of your convictions is very much part of the Australian psyche. We do seek a strong, fair and decent Australia based on these values. [71]

These values emphasise sameness, unity or 'one-ness'. They do so at an individual level. There is no obvious place for recognising cultural difference or for maintaining cultural practices in a way that differentiates a group from the rest of society.

b) Domestic policy debates about the rights agenda, treaty and governance reform

Details of the Government's approach to self-determination, including this focus on sameness and on the individual, can also be seen from other documents or statements by the Government on Indigenous policy released during the year. In particular, it can be seen from speeches at the ATSIC National Policy Conference, the ATSIC National Treaty Conference and in the Government's views on governance and capacity building in Indigenous communities.

The first is the speech at the ATSIC National Policy Conference by the Minister for Aboriginal and Torres Strait Islander Affairs in March 2002. On the Indigenous 'rights agenda' in general he makes the Government's common assertion about self-determination, namely that:

I know that when some talk about the rights agenda they are talking about a separate nation within a nation... [72]

The Minister then outlines the Government's understanding of self-determination:

Some people use words like self-determination loosely. I am all for individuals being able to determine their own destiny. [73]

It is notable that this description defines self-determination as applying to the individual. The Minister then returns to the 'threat' of recognising collective rights and of establishing formal structures for implementing such rights:

[I]n terms of the Australian community, I am not about separateness, I am about inclusiveness. Inclusiveness that respects, supports and encourages indigenous cultures and recognises the special place that indigenous people occupy in this country as the first Australians.

When some people talk about rights, they talk about structures, they talk about bureaucracy, they talk about separate entitlements. That's all well and good. But it is the debate of the past - modern commentators are challenging those paradigms.[74]

And he makes clear that the Government's policy framework is one that starts and ends with basic citizenship entitlements:

When I visit indigenous communities people tell me that the important rights for them are:-

The right to good education;

Decent health;

A reasonable standard of living in a house that they own;

A safe and secure environment for their families;

The right to a job.

And the right to:-

Protect, develop and celebrate indigenous culture;

Own land for cultural, social and economic purposes;

Contribute to the preservation of the environment.

At this conference, when we are considering future directions for indigenous policy, we must start with a frank and honest assessment about how we are performing in delivering those basic rights to Indigenous Australians. [75]

The Minister then put forward a 'five point plan' for Indigenous policy. In brief, the five points are:

shifting the emphasis of policy towards individuals and families;
focusing on replacing welfare dependency with economic independence;
recognising the need for shared responsibility and partnership between Government and Indigenous people;
addressing substance abuse as a central aspect of improving Indigenous health; and
ensuring that mainstream funding caters to Indigenous needs to enable better targeting of Indigenous specific resources. [76]

I consider this in chapter 3 of this Report. At this stage, I note that the Government has presented these five points as an alternative, and indeed even in opposition, to self-determination and a rights agenda. Yet it is difficult to comprehend why exactly these points are perceived by the Government as inconsistent with self-determination.

The Minister's five point plan was heavily criticised by Indigenous people during the course of 2002. In particular, a number of people suggested that it heralded a return to assimilationist ideology. As a consequence of this, the Minister sought to clarify the Government's approach at the National Treaty Conference in October 2002. He explained the Government's views as follows:

Australia can only claim to be a truly inclusive society when Indigenous Australians have the freedom to make their own choices and to achieve the same sorts of opportunities and outcomes as other Australians.

When I have used the term inclusiveness before, some commentators have confused this with the old assimilation policies of the past. That is not what I am saying at all.

The Government recognises the special place that Indigenous people occupy in this country as the "first Australians".

We believe that Indigenous Australians must be able to enjoy the same rights and responsibilities as other Australians.

Indigenous Australians should have the opportunity to enjoy their own culture and to share the benefits and responsibilities that this country offers to all citizens.

By inclusiveness I mean embracing and celebrating difference because it is those differences that determine what we are as a nation…[77]'

The Minister then stated the Government's opposition to the concept of a treaty with Indigenous people by arguing it 'distracts everybody… from the main game'. [78] He argues:

We should not allow ourselves to be distracted by intellectual pursuits or a wish list of things under the banner of a treaty. I'm talking about reserved Indigenous seats in parliament, self-government, dedicated shares of tax revenue, and a financial settlement for colonisation and 200 years of disadvantage. Widespread support for these concepts from the broad Australian community is very unlikely.[79]

Specifically on the issue of self-government, the Minister then states:

The new Canadian territory of Nunavut is sometimes cited as a possible model for Indigenous self-government in Australia. I have been to Nunavut and it is worth noting that Nunavut is not an ethnically-based government. All residents, both Inuit and non-Inuit, are entitled to vote.[80]

Instead of a treaty and issues like self-government, the Minister states the Government's preference for and role in 'fostering a new culture of agreement-making with Indigenous people that is giving them real influence and control in the affairs of state that matter to them'.[81]

Agreement-making is the Government's process for implementing 'shared responsibility and partnership' with Indigenous peoples. The Minister explained the Government's approach to agreement-making at the National Treaty Conference as follows:

Agreement-making, if it is to succeed, should be guided by the following principles:

Involvement of the local Indigenous community in decision-making and determining priorities for action;

Shared responsibility of parties to the agreement. Without all parties making undertakings, results can not be ensured;

Flexibility to meet local circumstances;

Focus on outcomes with clear benchmarks to measure progress.

We need agreements that are a two-way undertaking that change the relationship from one of passive welfare dependency to a much more equal relationship. Yes - I am talking about empowerment. [82]

Describing agreement-making as 'the emerging revolution in Indigenous affairs', the Minister describes Indigenous peoples' attitude to it as follows:

Empowered by clearer recognition of their basic citizenship rights and seasoned by a generation of advocacy, Indigenous Australians are marking out new territory in their efforts to realise their ambition of self-management and self-reliance. [83]

Notable about this description is the confinement of Indigenous peoples' aspirations to individual attributes of self-reliance and self-management, and to the achievement of citizenship rights.

While no one would disagree with the Government's commitment to working in partnership with Indigenous people and focusing on agreement-making, the question that remains is to determine exactly where the parameters of this process are. In other words, over what are they prepared to enter into partnership with Indigenous people and on what terms?

We particularly need to ask these questions given that we know that the Government are opposed to negotiating a treaty or framework agreement and are opposed to recognising self-determination to underpin the relationship with Indigenous people. Indeed, the answer to this question determines to a large extent whether their language of empowerment and partnership is merely rhetorical or has substance.

As I have reported in my annual Native Title Report for the past few years, the language of agreement-making has been adopted in the native title arena as a camouflage for decision-making within a framework that disempowers Indigenous people. Negotiations take place against the backdrop of a discriminatory native title regime and with unequal funding for participants in the system to be represented. This provides an illustration of why we must look behind the words to see whether the action supports the rhetoric.

There are some signs that the Government's rhetoric on agreement-making and partnership is not being matched by action. In their latest annual report to Parliament ATSIC suggest as such. In the Chairman's report, Geoff Clark notes:

What the Minister for Indigenous Affairs calls a 'new direction' is in fact a repackaging of directions that have been pointed out by our community and in a multitude of reports stretching back many years. There is evidence, moreover, that government rhetoric is outpacing its ability to deliver. The first report of progress under the COAG Reconciliation Framework, received in April 2002, was not encouraging.[84]

The conclusion that I have drawn by examining available materials is that the Government is reluctant to enter into any relationships or agreement making that will in any way transform the power relationship with Indigenous people, reduce the level of government control or result in significant institutional change.

In responding to a number of reports the Government has indicated that it views issues of partnership with Indigenous people as a matter of consultation or participation, and nothing more. As I quoted earlier, in its response to the reconciliation documents the Government stated that it is 'concerned that self-determination implies that a government must in some way relinquish responsibility for and control over those aspects of well-being over which it rightly has jurisdiction in common with its responsibility to all Australian citizens'.

The implication of this is that the Government places boundaries around what is negotiable through partnerships and agreement-making. It is unacceptable for these processes to result in any perceived relinquishment of power by government. In responding to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs inquiry into the needs of urban dwelling Indigenous people, the Government also noted that while it agrees with the principle that it is essential to work with local communities to find solutions to local problems, it has:

reservations about the Committee's [suggestion] that communities and individuals are generally better able to develop services to meet the needs of their communities than governments, or more likely than governments to find the best solutions to local problems and challenges. There are circumstances where this is true, but there are also circumstances where it is not. The level of community capacity is a key influencing factor. [85]

This approach replicates this concern about Indigenous people taking 'control' of Government processes. It is a strange view that sets Indigenous people up as competitors to the Government - where any accommodation of Indigenous aspirations is seen as giving something up. This is an extremely limited and disrespectful view of partnership. Both these statements above are of concern as they imply that the Government may not in fact be prepared to facilitate institutional change by refocusing service delivery back to communities.

This can also be seen by examining what the Government did not respond to in the Commonwealth Grants Commission's report on Indigenous funding need. The report proposes a wide range of processes for developing Indigenous community capacity and creating a role for Indigenous communities in controlling service delivery processes. These conclusions and associated recommendations are not responded to by the Government, which simply notes at the outset of its response that 'the CGC report includes findings and makes observations that go beyond the terms of reference for the inquiry. [The Government's] response… is limited to those matters that are within the terms of reference'.[86]

The limitations of the Government's approach can also be seen from their submission to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs (HORSCATSIA) inquiry into capacity building in Indigenous communities. The inquiry, and the Government's submission to it, comes in the wake of significant debate about Indigenous governance and the importance of building the capacity of communities to be able to exercise greater control over their own affairs and to be self-governing.[87]

The term capacity building, and the related term governance, have become slogans in Indigenous policy over the past year. In its submission to the House of Representatives Committee, however, the Government has already begun to co-opt the language of 'governance' and 'community capacity' to reinforce its current approach and to set boundaries around the type of partnerships that are acceptable to it. This is illustrated by its description of the Harvard Project on American Indian Development in North America.

The Harvard Project examines self-government in Indian communities and tries to identify what it is that makes communities successful in overcoming welfare dependency and poverty. The Project's basic conclusion is that 'genuine self-rule appears to be a necessary (but not sufficient) condition for economic success on indigenous lands'.[88] As Stephen Cornell explains:

We have yet to find a case of sustained, positive… economic performance where someone other than the Indian nation is making the major decisions about governmental design, resource allocations, development strategy, and related matters. In case after case, we have seen development begin to take hold when Indian nations move outsiders from decision-making to resource roles and become primary decision-makers in their own affairs.[89]

The project suggests that there are five main determinants of good governance in communities: real self-determination or sovereignty; the building of effective governing institutions; the existence of a cultural match between these institutions and Indigenous traditions; long-term strategic thinking; and leadership from individuals or groups, in the community's interest.

The Government acknowledges the importance of building Indigenous community capacity in its submission to the House of Representatives inquiry. It quotes the Harvard Project on the five determinants of good governance. Interestingly though it alters the description of the first of these determinants to fit within its alternative view of what the process should be. Hence, they describe the first determinant - real self-determination or sovereignty - as:

Real decision-making power over things such as governmental organisation, development strategy, dispute resolution, civil affairs etc (in other words, genuine self-management)…[90]

By contrast, the authors of the Harvard Project offer the following explanation of this very point:

The key feature of self-government is decision-making power. What we mean by self-government is self-rule or-in the United States, at least-what is commonly referred to as 'tribal sovereignty': indigenous control over indigenous affairs, including everything from membership to governmental design to resource use to regulatory functions to dispute resolution to law-making and law-enforcement.

One can think of this in very practical terms: Who is deciding how the housing money will be spent? Who is deciding whether or not to allow development on Native land and what the regulatory provisions will be? … If the answer to such questions is that the indigenous nation is making these decisions, then we have self-governance. If some other governing body is making these decisions, we do not have self-governance.

Put slightly differently: does the indigenous nation have to ask permission to do what it wants to do, from changing its governing institutions to managing its resources to changing the law regarding sacred sites on indigenous lands? Self-governance is absent when and where the answer is yes. Self-governance is in place when and where the answer is no…

What does 'self-governance' mean? It is a variable term. In Canada,… the federal government at times seems to view self-governance as little more than administrative control: the freedom of indigenous nations to take over day-to-day management of programs designed and funded by Ottawa or the provinces. Our meaning is different…

Self-government may be wide or narrow in scope. As the above discussion of decision-making power suggests, indigenous nations may be self-governing in some policy domains but not in others… The relevant question is: What governmental functions do the relevant indigenous nations control? Self-governance increases as the scope of indigenous decision-making power widens. As the scope narrows, self-governance declines.

Self-governing powers can be shared. Self-governing power is not an all-or-nothing business, nor does tribal sovereignty mean secession.[91]

ATSIC Chairman Geoff Clark correctly identifies the key differences between these conditions and the way that the Government has approached the issue of capacity building in Australia:

[T]here is evidence that the Government is using all of these discussions opportunistically rather than engaging with their substance. Governance becomes 'capacity building'. Though there is talk of injecting more Indigenous decision-making into programs, does this genuinely mean passing control to Indigenous groups? Does it involve the acknowledgement of our jurisdictions in this country? At first glance some Government policies appear contradictory and these contradictions can be resolved only by assuming that the Government has different policies for different groups of Indigenous people - though it has not really spelt this out.[92]

He also notes:

Current discussions on governance are a challenge for us and a challenge for governments. It is now widely recognised that Indigenous programs have perpetuated dependence, not development. Our communities have had to face arbitrary, complex, inconsistent and inflexible demands from program providers. The version of self-determination implemented in Australia has been a very limited one. These critiques are not new. Overseas experience and research, principally through the Harvard Project on American Indian Economic Development in the USA, suggests that there are five determinants of good governance…

These are political factors but they produce economic and other positive consequences. The Harvard research suggests that they are of greater significance than more obvious considerations such as education, access to resources and capital or location. There are, however, dangers for us in saying these things in the current political climate in Australia. HORSCATSIA is already quoting the Harvard research to the effect that 'access to natural resources (including land) and finance is less important… than effective governance'. This may be true, but this is a government operating out of an ideological straightjacket, which makes a totem of its annual Budget figure for Indigenous programs and which takes a very incremental approach to increasing that budget. The legal situation of Native Americans is also very different to that of Indigenous peoples in Australia. In the USA the people are recognised as constituting 'domestic dependent nations'… The invading Europeans in this part of the world did not extend that status to us. Many of the current Government's limitations in Indigenous policy stem from its refusal to acknowledge our history and status. Good governance also requires self-determination, but we have a government that is uncomfortable even using the word.[93]

Ultimately, Stephen Cornell suggests that the implications of the Harvard Project's research for Governments at the federal and state levels are as follows:

What does indigenous self-governance mean to these governments? Will it be limited to operational administration? Will it mean non-indigenous governments calling most of the shots, especially on the "big issues"? Or will it embrace genuine control over resources; freedom in the development of appropriate and effective governing institutions; significant and consequential dispute resolution powers and mechanisms; funding via block grants instead of program funds (which moves substantive decision-making power into indigenous hands) until indigenous nations can support themselves; a partnership - not consultation but a partnership - in major decisions wherever indigenous interests are at stake; and genuine jurisdictional power? If we are serious about self-government, then we have to include these things, and we have to invest in building the institutional capacity of indigenous nations to back up their power with capable and effective governing systems that operate under their own control. [94]

This is the true test of the extent to which the Government is prepared to enter into meaningful partnership with Indigenous people. There is nothing to suggest that the Government's view of agreement-making and partnership is prepared to tackle these issues or those raised by Geoff Clark above. It suggests that its commitment to self-empowerment, partnership and agreement-making processes is indeed something less than a commitment to self-determination, genuine participation and transfer of decision-making and control to Indigenous communities. The difference is indeed substantive, and not merely rhetorical.

c) International debates on self-determination

The Government has also opposed Indigenous self-determination through international negotiations that have taken place in the inter-sessional, open-ended working group of the Commission on Human Rights on the Draft Declaration on the Rights of Indigenous Peoples. [95] Australia's opposition in debate on self-determination and related concepts is consistent with the arguments that it relies upon domestically.

This opposition has been particularly notable due to the leading role that Australia had previously taken on Indigenous issues in the United Nations. For example, the Government's support for self-determination in the Working Group on Indigenous Populations in the early 1990s was a turning point in opening up debate and governmental support on this issue. In early sessions of the working group on the Draft Declaration the Government had also provided its support for the recognition of collective rights of Indigenous peoples. The current Government's position, and the fierceness of its advocacy, is rightly seen as an abrupt about-face. Ironically, it is viewed this way at a time when more countries are engaging constructively and in a supportive manner in the UN debates.

Since 1999, Australia has been categorised by Indigenous participants at the working group as one of the most active nations participating in the debates. It is also categorised as one of a group of only four nations - along with the United States of America, United Kingdom and Japan - that 'challenge fundamental principles underlying the Declaration, in particular, the concept of self-determination, language of indigenous peoples and/or the recognition of collective rights'. [96]

The Australian intervention on self-determination at the 1999 session of the working group, for example, was described as 'the most uncompromising of all State interventions on self-determination'. [97] In the intervention, Australia reaffirmed its inability to accept the inclusion of the term self-determination in the Declaration because for many people it implied the establishment of separate nations and laws.

A further illustration of the hardness and inflexibility of this approach was demonstrated with the repetition of this argument by the Government in each session of the working group since 1999. During the course of the 1999 session, the Chairperson of the working group had proposed that future debate on self-determination should be based on a number of premises which included recognition that the concerns expressed by some States in relation to secession had been responded to by assurances by some Indigenous delegations that they did not want to secede; as well as looking to ensure conformity between the formulation of the right to self-determination in the Declaration and the principles which guide the UN such as the UN Charter. [98] As noted in the previous section, declarations such as the Friendly Relations Declaration provide a guarantee of territorial integrity if the State remains representative.

Australia has persisted in opposing self-determination on the basis of fears of secession when the Chair of the Working Group has indicated that to do so would be unhelpful and that the issue had been addressed by Indigenous people. Indigenous participants, including ATSIC, have condemned the Australian Government's approach for this inflexibility and lack of good faith in its negotiating position. [99]

The Government's position also lends its support to attempts by other countries to limit the scope of any right of Indigenous people to self-determination. Most countries participating in the debates on the Draft Declaration have sought to amend the text of the Draft Declaration to guarantee their territorial integrity. Countries such as the United States of America and Canada, for example, have led government initiatives to limit the application of self-determination for Indigenous peoples to what is termed 'internal' dimensions, as opposed to 'external' dimensions. While the Government's position is to oppose recognition of self-determination as well as to oppose language such as 'Indigenous peoples' - which might invite recognition of a collective status for Indigenous peoples - its advocacy also gives credence and support to attempts to limit any recognition of self-determination to so-called 'internal' dimensions.

d) Summary - the Government's position on self-determination

In summary, through domestic policy debates as well as international negotiations we can identify the following factors which are of relevance to the Government's position on self-determination.

1. The Government acknowledges that Indigenous peoples are the first people of Australia with a unique status and identities.

2. The Government acknowledges that Indigenous peoples have not always been provided with equal opportunities in the past and that there is a need for special measures to overcome any consequent disadvantage that has resulted.

3. The Government opposes recognising a right of Indigenous peoples to self-determination in domestic policy formulation as well as in international instruments.

4. Self-determination is presented as representing the right to unilaterally challenge national sovereignty (note though that the Government states that this is how it is 'defined by some' - by whom exactly is never made clear and this view of 'some' is clearly co-opted to present the Government's view).

5. Self-determination is presented as implying the possibility of the establishment of a separate Indigenous state or states within Australia.

6. Self-determination along with a treaty are seen as promoting division or separateness rather than inclusiveness (which is defined as 'sameness' and 'the freedom (for Indigenous peoples) to make their own choices and to achieve the same sorts of opportunities and outcomes as other Australians').

7. It is implied that self-determination or recognition of cultural group rights runs counter to the belief that all Australians should be equally subject to a common set of laws with no special treatment.

8. While the Government does not support self-determination it does support Indigenous peoples having meaningful opportunities to exercise control over aspects of their own affairs and be engaged to the maximum extent possible as partners in the design and delivery of services.

9. The opportunity to exercise control, however, is clearly confined within the context of citizenship entitlements and the 'same' benefits (or common rights) that all other Australians are entitled to.

10. The extent of such control is never specified, though ATSIC is used as an example of the type of control that is acceptable, and self-government is rejected as a 'distraction' (note however, the bizarre description of self-government in Nunavut which raises - solely for the purpose of rejecting it - a potential view of self-government as an ethnically-based government which excludes non-Indigenous people from decision-making processes, including voting - i.e., leaving the necessary implication that Indigenous self-government could restrict the exercise of the rights of other citizens).

11. The right of Indigenous peoples' to exercise control over aspects of their lives is contrasted with the unacceptable contention that self-determination implies that a government must in some way relinquish responsibility for and control over those aspects of well-being over which it 'rightly has jurisdiction'.

12. Agreement-making is seen as the 'new' way to achieving the acceptable goal of 'active partnership and consultation with government'.

13. Capacity building of communities to be self-managing is also identified as an essential component to this 'new' partnership approach.

14. The boundaries on what is acceptable to negotiate through agreements as well as the purpose of capacity building is unclear, but it appears to not extend to recognition of Indigenous sovereignty and the transfer of institutional control to Indigenous communities.

15. The Government's prefers concepts of self-empowerment and responsibility, defined as individuals being able to 'determine their own destiny'.

16. These values emphasise sameness, unity or 'one-ness' and do so at an individual level.

17. While not accepting that there is a right to self-determination, the Government's position provides support in international negotiations to attempts by other countries to limit the recognition of self-determination to 'internal' as opposed to 'external' applications.

Implementing Indigenous self-determination in Australia

There are a range of significant differences between the Government's approach to self-determination and the understanding of it that has developed internationally. Many of these are masked by subtle uses of language such as commitments to partnership and Indigenous participation which are made without any real ability for Indigenous communities to exercise control or to determine priorities in a meaningful way; preferences for agreement-making rather than treaty; self-empowerment or self-management rather than self-determination; only conceiving of self-determination as existing at an individual level and as a right to exercise control over aspects of Indigenous livelihood; and so on.

Ultimately, however, when we scratch beneath the surface of the Government's rhetoric their approach is exposed as a reductive, minimalist one that is not prepared to accommodate Indigenous aspirations or recognise any distinct status of Indigenous people in any meaningful way. The implications of this approach are significant and cannot be rejected simply as rhetorical or as representing a preference for a particular type of language.

There are five main concerns that I have about the Government's approach, when compared to the fuller understanding of self-determination provided earlier in this chapter.

The first is the Government's reliance upon inflammatory, provocative untruths to reject Indigenous self-determination. This is shown by the suggestion, mysteriously made 'by some' but clearly endorsed by the Government's uncritical recitation of it, that self-determination may amount to a unilateral right to secede from Australia.

As already noted, there are very strict provisions in international law which guarantee the territorial integrity of States in all but extreme circumstances. There is no historical precedent or basis in international law for the suggestion that a state could be dismembered unilaterally. It is in fact such an absurd suggestion that the only conclusion that can be drawn from the Government's reliance upon it is that it is a deliberate untruth aimed at raising fear and opposition from non-Indigenous people.

The Government has relied on this particular untruth in responding to the Council for Aboriginal Reconciliation's report. It has not relied upon it in international negotiations. In such negotiations, as well as through other domestic processes, it has instead raised the fear of secession (but not achieved unilaterally). I noted above that the suggestion that Indigenous peoples in Australia might secede if accorded a right to self-determination is a-historical and again does not accord with international provisions relating to self-determination or guaranteeing territorial integrity. Reliance upon this assertion, as a way of opposing recognition of Indigenous self-determination outright, is again a sign of bad faith and constitutes a very simple way of not engaging with the real issues at stake.

A similar untruth is the representation of Indigenous aspirations for self-government. As quoted earlier, the Minister stated that it is 'worth noting' that the Canadian territory of Nunavut, as a model of self-government, is not an 'ethnically-based' government in which non-Indigenous people can't even vote. Why does the Minister consider this worth noting? No Indigenous people in Australia have ever made the suggestion that what they desire is an ethnically-based government in which no other people may exercise their basic rights. Again, it is an absurdity which is deliberately placed on the agenda in order to prevent serious aspirations to be discussed in a calm, reasonable manner.

Each of these examples are smokescreens which are quite deliberate in their intent - that is, at shutting down debate. They indicate that the Government is not prepared to discuss issues with Indigenous peoples in good faith.

The second main concern I have about the Government's approach is an overarching one. It is the failure, or perhaps refusal, of the Government to accept that any consequences flow from recognising the unique, distinct status of Indigenous peoples in this country. They state, in their response to the CAR documents, that the Government 'agrees that the unique status and identities of the Aboriginal and Torres Strait Islander people as the first people of Australia must achieve recognition, respect and understanding in the wider community' and that Indigenous culture is 'essential to our distinctive character as a nation'. But they reject that this should be reflected through 'additional, specific or different rights for one part of the community'.

The Government therefore seeks to limit the recognition of Indigenous peoples' status as if they were an undifferentiated minority group whose needs can be addressed under the umbrella of say multiculturalism and by guaranteeing sameness of treatment or opportunities for the same level of development. Indigenous peoples' circumstances, however, do not fit comfortably under such a banner. Native title, land rights and measures such as the Indigenous Land Corporation which are intended to address the consequences of Indigenous dispossession, are perfect illustrations of this.

It is a reality of 21st century Australia that Indigenous peoples are different, and that the expression of their cultures does involve unique forms of protection that do not apply to other Australians. A more wide-ranging definition of equality, which focuses on outcomes (such as in terms of equality of protection of culture) rather than on inputs (such as by purely guaranteeing equality of opportunities, as if there were a level playing field) is needed.

An ungrudging, full recognition of the unique status of Indigenous peoples in Australia would also create the capacity for a new foundation for the relationship between Indigenous peoples and the rest of the Australian community. At present, the relationship with Indigenous people is defined according to little more than the benevolent intentions of Government to improve the life conditions of a grossly disadvantaged people group. Such intentions are easily twisted into resentment and frustration at the amount of money spent when the desired improvements are not forthcoming. Defining a peoples' status and rights purely through their experiences of disadvantage is a dominating and disempowering approach. It is not a respectful basis for a relationship.

The alternative would be to acknowledge that Indigenous peoples are the first peoples of this land, that they maintain distinct cultures and that their survival is dependent upon protecting those cultures so that they may freely choose the manner and extent to which they participate in the mainstream society. The alternative would be to acknowledge that Indigenous peoples can live in accordance with their culture as a matter of entitlement and of right, not as a matter of courtesy or tolerance. This was of course the great potential of native title, as recognised in the Mabo decision. It made it a legal right, a matter of entitlement, for Indigenous peoples to live according to their cultures and traditions. And the alternative would be to recognise that Indigenous peoples have an integral role in determining and negotiating the priorities for their communities, and in occupying a central role in decision-making and processes that impact on their communities.

A third concern with the Government's approach is a consequence of this lack of recognition of Indigenous peoples' unique status. It has meant that there is no underlying basis, no guiding principles, for relations between governments and Indigenous peoples.

Indigenous people have on several occasions identified principles that should underpin negotiations between themselves and government, so that sufficient attention is paid to their distinct cultural characteristics and unique status in this country. The Social Justice Package proposal by ATSIC, for example, formulated Principles for Indigenous social justice and the development of relations between the Commonwealth Government and Aboriginal and Torres Strait Islander Peoples, which it saw as an essential commitment from government if it was to recognise the status of Indigenous peoples in this country.[100] I recommended in the Social Justice Report 2000, that these principles be adopted as the framework 'for negotiations about service delivery arrangements, regional governance and unfinished business'. The current approach, which has no such underpinning, leaves Indigenous policy formulation to develop without a consistent focus as to its purpose and without appropriate recognition of the status of Indigenous peoples.

A fourth and related concern is that the Government's current framework is oppositional in its approach and sets up Indigenous people as competitors of government. There is a fear in the Government's approach that Indigenous people are going to usurp control and power over matters which they believe more appropriately belong as responsibilities of government. It is a strange, indeed almost paranoid, view of partnership. It is also, in my view, an unrealistic one that does not accurately reflect Indigenous aspirations nor reflect historical reality.

The past thirty years, for example, has seen the development of an extensive 'Indigenous organisational sector' of community controlled organisations as well as national, regional and local based representation (of which ATSIC is the latest version). As Will Sanders notes, debates about the relative roles of different forms of organisation within this sector have:

been somewhat futile and unproductive. It has been based on a false premise that the categories 'government' and 'Indigenous' organisation are mutually exclusive, and that the process of demonstrating who best represents Indigenous interests is one of showing that a particular organisation owes nothing to non-Indigenous governments, and everything to Indigenous people… If government is thought of more as a process than as a structure, then there is no need to categorise organisations as either internal or external to government, or indeed as either internal or external to the Indigenous community…

The role of the Indigenous sector in the processes of Australian Government can be seen, in rather corporatist fashion, as providing some order and stability to the articulation of Indigenous interests. It can also be seen… as giving some practical shape to the broad policy idea of self-determination… One way or the other, the Indigenous sector has now emerged and now exists as an integral element of the processes of Australian Government. It is difficult to imagine this development being reversed in the foreseeable future.[101]

Put differently, Indigenous peoples' aspirations for appropriate forms of representation and participation in decision-making that integrally affects their lives is not essentially about separation or the acquisition of power and control. It is about:

'interrelationships... [where the] goal is relations and connections… [T]he aspirations of indigenous peoples relate to the… need for governing institutions to exist in such a way as to allow the people to live freely and determine their own destiny. The determination of Indigenous peoples to change the situation under which they live today derives from the experience that the institutions under which they have been forced to live since they were colonised were established illegitimately and suppress their ability to live freely and determine their own destiny'.[102]

Underlying the Government's concern about Indigenous control is a notion of loss of accountability. This is undoubtedly an extremely difficult issue. Issues of accountability, however, run two ways - accountability to the funding agency and government, and accountability to the community who are intended to benefit from the programme or policy intervention that is made. At present, there is a real imbalance with limited accountability back to Indigenous communities (and to the community as a whole).

As I have previously argued, the current approach to reconciliation lacks adequate benchmarks and performance monitoring mechanisms. The Government proudly notes it record level of expenditure as if that were the ends rather than the means. There is no focus on outcomes and achievements, except in a generalised and uncoordinated way. I have previously critiqued this in terms of Australia's obligations to progressively realise economic, social and cultural rights. The rejection of self-determination contributes to the lack of recognition by the Government of the need for a serious level of engagement of Indigenous people in policy formulation. It contributes to a lack of government accountability for its progress and for its expenditure.

At the same time, however, I do not advocate that the only form of accountability should be to the Indigenous community. Central to the principle of self-determination is a notion of responsibility. Indigenous communities must be accountable for their decision-making and expenditure. While the focus of this chapter has necessarily been on government's approach to self-determination, this is not intended to be at the expense of acknowledging the responsibilities and duties of self-determining communities. Ultimately, however, concern about ensuring adequate lines of accountability is not a reason for not engaging in a substantial process of involving Indigenous people in decision-making and programme design and management. It is a reason to do so on an agreed basis, with a clear understanding as to accountability and monitoring requirements.

The fifth main concern that I have is that there is no general acceptance by the Government of the legitimacy of Indigenous peoples being the primary decision makers on matters that affect their daily lives, and for efforts to build the capacity of Indigenous communities being directed at this aim.

I have been particularly fascinated by the Government's focus on 'real' issues as opposed to symbolic issues, and on their emphasis of providing basic citizenship entitlements. Earlier in this chapter I quoted the Minister stating that when he visits Indigenous communities people tell him that the important rights for them are the right to good education; decent health; a reasonable standard of living in a house that they own; a safe and secure environment for their families; the right to a job; and the right to protect, develop and celebrate indigenous culture; own land for cultural, social and economic purposes; and contribute to the preservation of the environment.

In 1983, fellow geographer Mary Hall and I, completed a report titled Aboriginal basic needs, New South Wales, 1983 - an action benchmark survey. This report was based on interviews with a random sample of heads of Aboriginal households across New South Wales. The purpose was to conduct a benchmark survey of Aboriginal peoples' basic needs, as a baseline from which any gains in their economic and social quality of life attributable to the then forthcoming introduction of land rights legislation could be measured.

Throughout this process, the heads of Aboriginal households across New South Wales identified similar needs as those suggested by the Minister. Only they did so twenty years ago. [103] Not much has changed. At the time we noted that 'poverty and its social consequences for poor people are not personal attributes, they arise out of the organisation of society. Victim-bashing is an easier, more comfortable attitude to adopt than hard-headed analysis of endemic injustice'. [104]

Our working hypotheses for the survey were:

a) that Aborigines are experts in the everyday reality of their own situation;

b) that they could articulate and prioritise their needs, possibly identifying solutions as well as problems; and

c) that their perceptions of their needs would result in quantifiable patterns which could form useful bases for policy making. [105]

Ultimately, the survey sought to offer benchmarks and touchstones for the question: 'In whose interests are the decision makers operating?' [106] These assumptions remain valid today and this question remains the fundamental one for governments. [107]

As ATSIC has previously stated, for all policies and programmes 'the values and aspirations that are meaningful to, and express priorities of, Australia's Indigenous peoples must be the basis for the policy approaches being taken'. Accordingly, the question that should be asked in relation to each proposed programme or policy is, 'will this activity enhance Indigenous peoples' capacity to achieve what is important to them and, in its development and implementation, contribute to the empowerment of Indigenous peoples and the achievement of their objectives and priorities?' [108]

Geoff Clark and Stephen Cornell were quoted earlier in this chapter as identifying some of the relevant questions to identify a genuine commitment of governments to Indigenous self-determination through developing Indigenous governance. They asked:

When there is talk of injecting more Indigenous decision-making into programs, does this genuinely mean passing control to Indigenous groups?
Does it involve the acknowledgement of our jurisdictions in this country?
Will indigenous involvement be limited to operational administration?
Will it mean non-indigenous governments calling most of the shots, especially on the 'big issues'?
Will it embrace genuine control over resources; freedom in the development of appropriate and effective governing institutions; significant and consequential dispute resolution powers and mechanisms; funding via block grants instead of program funds; a partnership in major decisions wherever indigenous interests are at stake; and genuine jurisdictional power?

The Government's approach does not reveal a commitment to developing Indigenous capacity in accordance with these issues.

Overall, the concerns identified here point to major differences between a rights based approach to reconciliation and Indigenous policy formulation, and the approach currently favoured by the Government. There are two broad consequences that flow from this.

First, a number of the concerns and contentions that are raised by the Government about self-determination in both the domestic and international arenas are unjustified. Some are not supported by developments in international law; others simply lack reality. Consequently, they have no place as the basis of Indigenous policy formulation by the Government. In my view, these limitations and gaps in the Government's approach militate against effective policy and programme design in Australia. The rejection of self-determination as the basis of Indigenous policy formulation has very real consequences.

Second, the differences reveal how the current approach of the Government to Indigenous policy formulation is introverted and myopic. It is unwilling to build on international developments or to accept that at core we are dealing with problems in relation to Indigenous peoples that are being faced globally. Comparing the underlying basis of the Government's approach to indigenous policy with international debates about the appropriate standards for addressing Indigenous issues reveals that the current Australian approach is at the most conservative end of the spectrum, and lacks imagination and vision.

Conclusion - Reclaiming self-determination

This chapter has argued that the Government's opposition to self-determination is not merely rhetorical. It has consequences and places limitations on the breadth of enjoyment of rights by Indigenous peoples and on their ability to participate meaningfully in processes that affect their lives. It is a disheartening position for two main reasons - first, simply for how minimal and reductive an approach it is; and second, because of the way that the philosophical underpinnings of this approach go less challenged than they should.

This Report fulfils the important function of monitoring government performance on the recognition of Indigenous human rights. It necessarily focuses on the adequacy of the approach of Governments, principally the federal Government. This can, however, obscure other important aims of Indigenous policy. For while government plays a crucial role in the lives of Indigenous peoples, and has significant ability to stifle and control Indigenous aspirations, they do not have the central role in determining Indigenous peoples' destinies. Indigenous peoples possess that role.

Despite the Government's current approach, I remain heartened due to the fact that Indigenous peoples have not sat by while this framework has been implemented or been passive in their response to it. Developments such as the Lingiari Foundation, the Lumbu Foundation, the Australian Indigenous Leadership Centre at the Australian Institute of Aboriginal and Torres Strait Islander Studies and the National Indigenous Youth Movement of Australia fulfil a vital role in developing the leadership capacity for communities to be self-determining.

Similarly, communities all over the country continue to work away at the realisation of their aspirations and goals with the often limited tools that they have at their disposal. At the Indigenous governance conference hosted by Reconciliation Australia, ATSIC and the Department of Multiculturalism, Immigration and Indigenous Affairs in April 2002 there were numerous examples of communities working towards achieving the level of control and say over decision-making that they desire as communities.

Some of these initiatives seek to utilise existing processes - such as the Murdi Paaki regional autonomy push utilising the Murdi Paaki ATSIC regional zone as its basis. Others seek to build from existing structures - such as the Torres Strait Regional Authority's push for regional governance. Others still have sought to coordinate the disparate, often inconsistent approaches of different governments through a centralised community focus - such as the Katherine region coordinated health care trial. And further communities have simply decided that existing arrangements do not meet their needs and have sought to re-impose traditionally based structures on the community - such as the Ali Curung justice approach or the Cape York Partnerships.

These initiatives indicate the fact that the Government does not support self-determination or put into place processes for its realisation is not the end of the matter. Reduced to their basics, these processes identify flaws or problems in the existing system and community led ways forward for addressing them. By focusing on the capacity of the community to resolve and own these issues, they place the community in a more powerful and central role to take control of their destinies.

A central factor to the success of these processes, however, is the level of government engagement and support for them. When we look to these initiatives within a framework of self-determination, we can see the inconsistencies and ad hoc nature of the Government's intervention. For example, why should the desires and aspirations of the communities of Cape York receive the level of support that they do from state and federal Governments, including through stated commitments to streamlining service delivery arrangements and changing the law to better suit the aspirations of the community, while the Mutitjulu community, an equally imaginative and determined community to address the social ills of welfare dependency, languishes in a federal Government process for a community participation agreement [109] (and languishes principally because the Government refuses to provide the type of institutional support it is providing in Cape York)? This question does not get asked because policy is formulated within a reductive, individualised framework where comparison and consistency is not emphasised.

In my view, there has been an illegitimate and quite wrongful assumption made by the Government that it has the prime role in defining what Indigenous self-determination is. This is the wrong starting point and it is the primary problem with the way in which self-determination has been defined over the past thirty years. It has been accompanied by a reliance of Indigenous communities on government to implement self-determination.

True self-determination, though, requires communities to marginalise the role of government in the functioning of their communities. It is a perversion that governments continue to exercise almost total control over many Indigenous communities. It is not a normal functioning of those communities or of government.

We must continue to challenge the narrowness of the approach of the Government. Communities must also not be discouraged from seeking their own resolutions to the problems that they face as communities. We must continue to reclaim self-determination from the Government.

1 Mayor, F, 'Message from the Director-General of UNESCO', in van Walt van Praag, M, The implementation of the right to self-determination as a contribution to conflict prevention, UNESCO Centre of Catalonia, Barcelona, 1999, p14.

2 See Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2000, Chapter 2. (Herein 'Social Justice Report 2000'). See also: Aboriginal and Torres Strait Islander Social Justice Commissioner, An Australian perspective on self-determination, UN Doc: E/CN.4/2002/WG.15/WP.1, 21 October 2002, available online at: www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/cf03e35f75a32a36c1256c68004df6ce?Opendocument.

3 Ruddock, P, 'Changing direction', Speech, ATSIC National Policy Conference - Setting the Agenda, 26 March 2002, www.minister.immi.gov.au/atsia/media/transcripts02/change_dir_0302.htm.s

4 Downer, A, quoted in Forbes, M, 'Downer fears phrase will split Australia', The Age 22 August 1998.

5 Herron, J, Statement on behalf of the Australian Government at the 17th session of the United Nations Working Group on Indigenous Populations, Minister for Aboriginal and Torres Strait Islander Affairs, Canberra, 29 July 1999, p7.

6 Sanders, W, Towards an Indigenous order of Australian Government: Rethinking self-determination as Indigenous affairs policy, Centre for Aboriginal Economic Policy Research (CAEPR) Paper No. 230/2002, CAEPR, Canberra, 2002, p2.

7 ibid.

8 Council of Australian Governments, National Commitment to improved outcomes in the delivery of programs and services for Aboriginal peoples and Torres Strait Islanders, COAG, Perth, 1992, para 4.1.

9 Daes, E, 'Striving for self-determination for Indigenous peoples' in Kly, Y, and Kly, D (Eds), In pursuit of the right to self-determination, Clarity Press, Geneva, 2000, p58.

10 For a commentary on these provisions see Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 1999, HREOC, Sydney, 2000, pp 89-97.

11 Venne, S, Our elders understand our rights: Evolving international law regarding Indigenous rights, Theytus Books Ltd, Penticton, British Columbia 1998, p68.

12 General Assembly Resolution 1514 (XV), 14 December 1960.

13 General Assembly Resolution 2625 (XXV), 24 October 1970.

14 Venne, S, op cit, p75.

15 For an overview of these reports see ibid, pp75-82.

16 Critescu, A, The historical and current development of the right to self-determination on the basis of the Charter of the United Nations and other instruments adopted by the United Nations organs, with particular reference to the promotion and protection of human rights and fundamental freedoms, UN Doc: E/CN.4/Sub.2/L.641, 8 July 1976, para 140; as cited in ibid, p76.

17 Espiell, H, The right of self-determination - implementation of United Nations resolutions, UN Doc: E/CN.4/Sub.2/405/Rev.1, para 56; as cited in ibid, p77.

18 ibid.

19 Capotorti, F, Study on the rights of persons belonging to ethnic, religious and linguistic minorities, UN Doc: E/CN.4/Sub.2/384/Rev.iii, 1979.

20 Deschenes, J, Promotion, protection and restoration of human rights at the national, regional and international level - Prevention of discrimination and protection of minorities, Proposal concerning a definition of the term 'minority', UN Doc: E/CN.4/Sub.2/1985/31 and Corr.1.

21 Cobo, J.M, Study of the problem of discrimination against indigenous populations: Volume V, Conclusions, Proposals and Recommendations, United Nations Geneva 1987, UN Doc: E/CN.4/Sub.2/1986/7, para 362.

22 Deschenes, J, op cit, para 29.

23 Eide, A and Daes, E, Working paper on the relationship and distinction between the rights of persons belonging to minorities and those of indigenous peoples, UN Doc: E/CN.4/Sub.2/2000/10, 19 July 2000, para 22.

24 ibid, para 2.

25 ibid, para 18.

26 ibid, para 2.

27 ibid, para 19.

28 ibid, para 2.

29 ibid, para 21.

30 ibid, paras 8-9, emphasis added.

31 ibid, para 10.

32 UNESCO, 'Conclusions and recommendations of the conference' in van Walt van Praag, M (Ed), The implementation of the right to self-determination as a contribution to conflict prevention, UNESCO Centre of Catalonia, Barcelona, 1999, p19.

33 ibid, p28.

34 ibid.

35 Daes, E, 'Striving for self-determination for Indigenous peoples' in Kly, Y, and Kly, D (Eds), op cit, p58.

36 van Walt van Praag, M (Ed), op cit, p27; Advisory Opinion on Western Sahara (1975) ICJ 12, pp32-33.

37 Nystad, R, 'Self-determination and the Sami people' in Kly, Y, and Kly, D (Eds), op cit, p115.

38 van Walt van Praag, M (Ed), op cit, pp27-28.

39 Wilenski, P, Speech on behalf of the Government of Australia to the 44th session of the United Nations General Assembly 1992, as quoted in Frankovits, A, 'Towards a mechanism for the realisation of the right to self-determination' in Kly, Y, and Kly, D (Eds), op cit, p28.

40 Beetham, D, 'Democracy and human rights: contrast and convergence', Speech, United Nations High Commissioner for Human Rights seminar on the Interdependence between democracy and human rights, Geneva, 25-26 November 2002, www.unhchr.ch/democracy/, p8.

41 Social Justice Report 2000, op cit, p12.

42 Kly, Y, 'Exploring the concept of the right to self-determination in international law and the role of the United Nations' in Kly, Y, and Kly, D (Eds), op cit, pp43-44.

43 Social Justice Report 2000, op cit, p19.

44 For a discussion of these declarations see Venne, S, op cit, pp73-75.

45 Daes, E, Explanatory note concerning the Draft Declaration on the Rights of Indigenous Peoples, UN Doc: E/CN.4/Sub.2/1993/26/Add.1, 19 July 1993, para 21.

46 See also van Walt van Praag, M (Ed), op cit, p31.

47 As quoted at the beginning of this section, Article 1 of the international covenants are similarly qualified, meaning that Indigenous self-determination can only threaten territorial integrity in the event that the State becomes unrepresentative.

48 Daes, E, Indigenous peoples and their relationship to land, UN Doc: E/CN.4/Sub.2/2001/21, 11 June 2001, para 12-13.

49 ibid, para 20.

50 Eide, A, and Daes, E, op cit, para 15.

51 van Walt van Praag, M (Ed), op cit, pp30-31.

52 Lâm, M, At the edge of the State: Indigenous peoples and self-determination, Transnational Publishers, New York, 2000, pxxiii.

53 Trask, M, 'Future perspectives on the Draft Declaration on the Rights of Indigenous Peoples: Human rights at the crossroads' (2002) 1 Indigenous Affairs 20, p20.

54 For case studies of the self-determination claims in the Torres Strait and central Australia see Aboriginal and Torres Strait Islander Social Justice Commissioner, An Australian perspective on self-determination, op cit.

55 van Walt van Praag, M (Ed), op cit, pp31-32.

56 Cobo, J M, op cit, para 401.

57 Council for Aboriginal Reconciliation, Australian Declaration Towards Reconciliation, online at: www.austlii.edu.au/au/other/IndigLRes/car/2000/12/pg3.htm.

58 Council for Aboriginal Reconciliation, Recognising Aboriginal and Torres Strait Islander rights - Ways to implement the National Strategy to Recognise Aboriginal and Torres Strait Islander Rights, CAR Canberra 2000, Online at: www.austlii.edu.au/au/other/IndigLRes/car/2000/9/.

59 ibid.

60 ibid.

61 ibid.

62 ibid.

63 Council for Aboriginal Reconciliation, Reconciliation - Australia's challenge, Council for Aboriginal Reconciliation, Canberra 2000, www.austlii.edu.au/au/other/IndigLRes/car/2000/16/text10.htm.

64 Council for Aboriginal Reconciliation, Australian Declaration Towards Reconciliation, op cit.

65 Howard, J, Reconciliation documents, media release, 11 May 2000.

66 Minister for Aboriginal and Torres Strait Islander Affairs, Response to the Council for Aboriginal Reconciliation Final report - Reconciliation: Australia's challenge, Commonwealth Government, Canberra, 2002, p10.

67 ibid.

68 ibid.

69 ibid, pp19-20. Emphasis added.

70 ibid, p17.

71 Howard, J, 'Strategic leadership for Australia - policy directions in a complex world', Speech, Committee for Economic Development of Australia, Sydney, 20 November 2002, www.pmc.gov.au/leadership/strategicleadership1.cfm, p1, italics added.

72 Ruddock, P, 'Changing direction', Speech, ATSIC National Policy Conference - Setting the Agenda, op cit.

73 ibid.

74 ibid.

75 ibid. Note my comments later in this chapter which relate to the results of the NSW basic needs survey of 1983 on these issues.

76 ibid.

77 Ruddock, P, Agreement making and sharing common ground, Speech, ATSIC National Treaty Conference, 29 August 2002, www.minister.immi.gov.au/atsia/media/transcripts02/treaty_conf_0802.htm.

78 ibid.

79 ibid.

80 ibid.

81 ibid.

82 ibid.

83 ibid.

84 Aboriginal and Torres Strait Islander Commission, Annual Report 2001-2002, ATSIC Canberra 2002, p31.

85 Minister for Aboriginal and Torres Strait Islander Affairs, Government response to 'We can do it! The needs of urban dwelling Aboriginal and Torres Strait Islander peoples', Commonwealth Government, Canberra, 2002, p6.

86 Department of Immigration and Multicultural and Indigenous Affairs, Government's response to the Commonwealth Grants Commission Report on Indigenous Funding 2001, DIMIA, Canberra, 2002, p5.

87 See Social Justice Report 2000, Chapter 4; Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2001, HREOC, Sydney, 2001, Chapters 2 and 3 (herein 'Social Justice Report 2001'); Reconciliation Australia, Indigenous Governance Conference, www.reconciliationaustralia.org/graphics/info/publications/governance/speeches.html.

88 Cornell, S, 'The importance and power of Indigenous self-governance: Evidence from the United States', Speech, Indigenous Governance Conference, 3 April 2002, p1, Online at: www.reconciliationaustralia.org/docs/speeches/governance2002/02_stephen_cornell.doc.

89 ibid, p2.

90 Department of Immigration and Multicultural and Indigenous Affairs, Submission to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs inquiry into capacity building in Indigenous communities, DIMIA, Canberra, 2002, p15.

91 Cornell, S, op cit, pp2-3.

92 ATSIC, Annual Report 2001-2002, op cit, p34.

93 ibid, p33.

94 Cornell, S, op cit, p9.

95 See chapter 6 for discussion of the Working Group and the Draft Declaration.

96 International Work Group for Indigenous Affairs (IWGIA), 'Report on the 6th session of the Commission on Human Rights Working Group on the Declaration on the Rights of Indigenous Peoples' in The Indigenous World 2000-2001, IWGIA, Copenhagen, 2001, p444. See also Pritchard, S, 'The Draft Declaration on the Rights of Indigenous Peoples remains on its troubled path through the UN' in International Work Group for Indigenous Affairs (IWGIA), The Indigenous World 1999-2000, IWGIA, Copenhagen, 2000, p402.

97 Pritchard, S, Setting international standards - An analysis of the United Nations Draft Declaration on the Rights of Indigenous Peoples and the first six sessions of the Commission on Human Rights Working Group, 3rd Edition, ATSIC, Canberra, 2001, p79.

98 Chavez, L, Report of the Working Group established in accordance with Commission on Human Rights resolution 1995/32, UN Doc: E/CN.4/2000/84, 6 December 1999, para 85.

99 International Work Group for Indigenous Affairs (IWGIA), 'Report on the 6th session of the Commission on Human Rights Working Group on the Declaration on the Rights of Indigenous Peoples', op cit, p424.

100 ATSIC, Recognition, rights and reform, 'ATSIC Canberra 1995', pp9-10; See also Social Justice Report 2000, op cit, pp 126-128. See also Corporate responsibility principles for development on Indigenous land, developed at a forum hosted by the Social Justice Commissioner in 2002: www.humanrights.gov.au/social_justice/corporateresponsibility/development.html.

101 Sanders, W, op cit, pp8-9.

102 van Walt van Praag, op cit, p30.

103 See for example: Hall, M, and Jonas, W, Almost out of sight, almost out of mind - Aboriginal reports of Aboriginal basic needs, New South Wales 1983, University of Newcastle, Newcastle Australia 1985, Appendix 3 - Perceived needs, pp382-396.

104 ibid, p357.

105 ibid, p7.

106 ibid, p361.

107 It is notable that in response to one of the survey's questions of 'who is responsible for meeting your needs?' the top ranking response in all areas of the state was seeing Aborigines and the Government together as responsible: ibid, p330.

108 ATSIC, Directions for change, ATSIC, Canberra, 2001, p1.

109 The problems of the community participation agreement process are discussed in chapter 3 on reconciliation.

19 March 2003.

Site navigation

Aboriginal & Torres Strait Islander Social Justice navigation

Social Justice Report 2002

Chapter 2: Self-determination - the freedom to 'live well'

Self-determination and the ‘politics of symbolism’

(Re-)Defining self-determination

The Government’s approach to self-determination

Implementing Indigenous self-determination in Australia

Conclusion – Reclaiming self-determination

Self-determination and the 'politics of symbolism'

(Re-)Defining self-determination

a) Do Indigenous peoples have a right to self-determination?

b) What is Indigenous self-determination?

c) Summary - Defining Indigenous self-determination

The Government's approach to self-determination

a) Reconciliation

b) Domestic policy debates about the rights agenda, treaty and governance reform

c) International debates on self-determination

d) Summary - the Government's position on self-determination

Implementing Indigenous self-determination in Australia

Conclusion - Reclaiming self-determination

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