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Aboriginal Aboriginal and Torres Strait Islander Social Justice

'Setting the scene'

Opening address
to the 'Indigenous peoples and racism' Conference
A Regional Meeting for the United Nations World Conference Against Racism,
Racial Discrimination, Xenophobia and Related Intolerance by Dr William
Jonas AM , Aboriginal and Torres Strait Islander Social Justice Commissioner
, Human Rights and Equal Opportunity Commission, 20 February 2001

I would like to acknowledge the Eora people, the traditional owners and
custodians of the land where we are meeting today. I would also like to
acknowledge and thank Uncle Max Eulo and Alan Madden for their generous
welcome to country this morning, and welcome all participants in this
conference - many of whom have travelled great distances to be here.

I would
also like to commend ATSIC and the Office of the United Nations High Commissioner
for Human Rights for having the foresight and commitment to hosting and
funding this conference as part of the preparations for the upcoming World
Conference Against Racism.

At the
outset I want to stress the importance of the upcoming World Conference
Against Racism. In its resolution establishing the upcoming World Conference,
the General Assembly of the United Nations notes:

 

with
grave concern that, despite the efforts of the international community,
the principal objectives of the two previous Decades for Action to
Combat Racism and Racial Discrimination have not been attained and
that millions of human beings continue to this day to be the victims
of varied forms of racism and racial discrimination ...
[1]

Racism
is on the increase across the globe. No country is immune to this - including
Australia. There is an urgent need for consideration of actions to combat
racism.

The
upcoming World Conference is the third such conference to be held by the
United Nations in the past forty years. The second conference took place
in 1983, almost twenty years ago.

A lot
has happened in those twenty years. There have been many developments
in the fight against racism - ranging from the end of the apartheid system
in South Africa at one end of the spectrum to ethnic cleansing in Europe
and Africa at the other end.

International
attention to racism has also changed in its focus. In previous decades,
international action to combat racism has been clearly focused on such
evils as apartheid, segregation and nazism. These movements are based
on explicit ideologies grounded in the racial superiority of one group
over another. While doctrines of racial superiority continue, the way
that racism manifests in society today is often more complex and diverse.

This
presents a great challenge for us. The International Council on Human
Rights Policy recently expressed concern that the fight against racism
today is not as strong as at the time when the international community
was united in the fight against these evils. This is not to say that concern
about racism does not remain in the public domain. It clearly does - but
it remains so less pressingly, in a less united way, and with the denial
of human dignity that racisms represents being much less visible
[2]
.

Professor
Theodor van Boven, a former United Nations Special Rapporteur and member
of the Committee on the Elimination of Racial Discrimination, also links
the struggle against racism in the 1950s, 60s and 70s to the struggle
against colonialism. He argues that this focus and the common strategies
that were developed to counter it, envisaged racism and racial discrimination
as something practised by others. It largely ignored the existence of
similar or comparable practices on one's own domestic scene. Combating
racism in this context was envisaged by the majority of the members of
the United Nations as 'a matter of foreign policy'
[3]
. This has now changed. Consequently:

 

Very
few or rather no countries can nowadays make a legitimate claim that
they do not face within their own borders problems of racial discrimination ...
Such an awareness is now widespread and constitutes a step forward
but also underlies the complexities of the problems.
[4]

One
of the most important developments in the fight against racism in the
past twenty years has been the greater consideration given to issues of
discrimination against Indigenous peoples, particular since the publication
of the Cobo study on the problem of discrimination against Indigenous
peoples by the United Nations in the 1970s. A striking aspect of the Cobo
study was the realization that, almost without distinction, Indigenous
peoples across the globe are marginalised and severely disadvantaged in
the nations where they live.

The
international community, through the structures of the United Nations,
has begun to respond to this realization in two main ways. First, there
have been developments over the last 20 years in the interpretation of
the core principles of the international law system - non-discrimination,
equality before the law and self-determination - making them more responsive
to the circumstances of Indigenous peoples.

Second,
the United Nations has begun to recognise the unique status of Indigenous
peoples by providing forums within the United Nations structure - such
as the Working Group on Indigenous Populations and the recently established
Permanent Forum on Indigenous Populations - for Indigenous peoples to
elaborate upon and further develop the application of human rights principles.
The Draft Declaration on the Rights of Indigenous Peoples is a product
of this engagement.

These
developments represent a major, though incomplete, shift in the human
rights system. In fact, Indigenous peoples are yet to benefit from these
developments in any significant way. Mr Miguel Alfonso Martinez, in his
recent Study on treaties, agreements and other constructive arrangements
between States and Indigenous populations
, notes that Indigenous peoples
continue to enjoy standards of living and socio-economic conditions that
are far inferior to the rest of the society in which they live. He laments
that 'not much of substance has changed for Indigenous peoples since (the
publication of the Cobo study in the 1970s). The basic elements of their
relationships with the non-Indigenous world remain unchanged'
[5]
.

This
conference should be seen as a significant opportunity to consolidate
these developments in the United Nations through the articulation of a
concise, clearly elaborated plan of action for combating racism and racial
discrimination against Indigenous peoples.

It is
important to note, however, that the World Conference is ultimately a
meeting of UN member states. While participation and contributions from
non-government organizations, National Human Rights Institutions, other
UN agencies and affected groups such as Indigenous peoples is being actively
sought, at the end of the day it will be the governments of the world
who will negotiate and commit to a program of action at the World Conference.

This
is something that we must bear in mind as we progress over the next three
days. While our deliberations must be aimed at specific, targeted recommendations
for combating racism against Indigenous peoples in an international context,
we must also consider strategic approaches for tackling racism domestically,
and for lobbying governments to take action in their own backyards, as
well as to support Indigenous aspirations in international forums.

This
is not an easy task, as anyone who has taken an interest in the negotiations
in the Commission on Human Rights Working Group on the Draft Declaration
on the Rights of Indigenous Populations will tell you. The Draft Declaration
represents a very clear vision from Indigenous peoples of how we conceive
of our rights. Yet governments across the globe have yet to agree with
the basic proposition that underlies the Draft Declaration - namely that
we are peoples, and that there is a collective dimension to our livelihoods
and identity.

I am
confident, however, that we will be able to build upon and significantly
progress the agreed position of governments in the World Conference on
Human Rights held in Vienna in 1993. Paragraph 20 of the declaration of
the conference states that:

 

20.
The World Conference on Human Rights recognizes the inherent dignity
and the unique contribution of indigenous people to the development
and plurality of society and strongly reaffirms the commitment of
the international community to their economic, social and cultural
well-being and their enjoyment of the fruits of sustainable development.

States
should ensure the full and free participation of indigenous people
in all aspects of society, in particular in matters of concern to
them. Considering the importance of the promotion and protection of
the rights of indigenous people, and the contribution of such promotion
and protection to the political and social stability of the States
in which such people live, States should, in accordance with international
law, take concerted positive steps to ensure respect for all human
rights and fundamental freedoms of indigenous people, on the basis
of equality and non-discrimination, and recognize the value and diversity
of their distinct identities, cultures and social organization.

There
are five themes for this conference and the World Conference Against racism.
They are:

 

i)
Causes - examining the sources, causes, forms and contemporary manifestations
of racism, racial discrimination, xenophobia and related intolerance;

ii)
Victims - identifying who are the victims of racism;

iii)
Prevention - considering measures for prevention, education and protection
against racism in all its forms;

iv)
Remedies - considering processes for effective remedies, recourse,
compensation and redress, and other measures for victims of racism;
and

v)
Strategies - for achieving full and effective equality.

It is
intended that the discussion of these themes throughout the World Conference
processes will meet the following objectives. That it will:

  • review progress
    in the fight against all forms of racism, and allow an appraisal
    of the obstacles to further achievement in addressing racism and
    of ways to overcome these obstacles;

  • consider ways
    and means of better ensuring the application of existing human rights
    standards and the implementation of existing mechanisms to combat
    racism;

  • increase the
    level of awareness about racism and provide a better understanding
    of the factors leading to racism (be they historical, cultural,
    political, economic or otherwise); and

  • formulate
    concrete recommendations on ways to increase the effectiveness of
    the UN in combating racism and on action- oriented measures to combat
    racism at the national, regional and international levels.
    [6]

We should
keep these themes and objectives in mind as we progress through the conference.
In particular, I would urge that people keep the following factors in
mind.

It is
important to reiterate that this conference is action-oriented. It is
expected that at the end of the next three days we will have formulated
recommendations and a programme of action for transmission to the High
Commissioner for Human Rights. This programme of action should discuss
all issues relating to racism and Indigenous peoples, and identify actions
to combat racism. Indigenous organizations, non-government organizations,
human rights institutions and hopefully many governments will then take
this document away as a basis for negotiation on the platform that will
emerge from the World Conference Against Racism in South Africa in September.
We must remain focused on this task during the conference.

I would
also urge everybody to draw on the wealth of international experience
in dealing with racism against Indigenous peoples.

It is
important to acknowledge that there are a range of existing human rights
principles and mechanisms that are relevant to our discussions over the
next few days. Parties to the International Convention on the Elimination
of All Forms of Racial Discrimination, for example, are required to assure
to everyone within their jurisdiction effective protection and remedies
against acts of racial discrimination, and to provide just and adequate
reparation to victims of racial discrimination. They are also required
to adopt immediate and effective measures in relation to education in
order to combat prejudices which lead to racial discrimination, as well
as to promote tolerance, understanding and friendship.

These
obligations clearly relate to the themes of prevention; remedies and strategies.
In many instances the barrier to greater enjoyment of rights by Indigenous
peoples will not be the absence of consensus on the need for such provisions,
but failings in the way that these principles are implemented. We need
to identify those relevant standards that already exist and consider how
they can be better monitored and implemented (at both the national and
international level)

The
recent appearances by Australia before several of the United Nations human
rights treaty committees also provide us with valuable guidance on where
Australia currently stands on racial discrimination as it relates to Indigenous
Australians.

Australia
appeared before the Committee on the Elimination of Racial Discrimination
in March 2000; the Human Rights Committee in July 2000; the Committee
on Economic, Social and Cultural Rights in August 2000; and the Committee
against torture in November 2000.

The
various Committees expressed the following concerns about Australia's
compliance with its existing human rights obligations:

  • The lack of
    an entrenched guarantee against racial discrimination, which would
    override any subsequent legislation at the federal, state or territory
    levels. While there exists a Racial Discrimination Act this
    can be overridden by a subsequent piece of federal legislation that
    expresses contrary intentions. It is quite extraordinary to think
    that a government would override a guarantee of non-discrimination
    on the basis of race but this is exactly what happened with the
    amendments to the Native Title Act - which authorised states and
    territories to conduct activities that were racially discriminatory,
    and which would otherwise have been illegal. The government also
    currently has before Parliament a bill relating to reproductive
    technologies such as IVF which would weaken the guarantee of non-discrimination
    on the basis of marital status in the Sex Discrimination Act
    1984
    ;

  • This is coupled
    with the lack of adequate protection of rights or provision of effective
    remedies for breaches of rights in the Australian system.International
    obligations are not automatically effective in Australian law upon
    ratification of a treaty. It requires an act of incorporation before
    this occurs. The result is that our obligations under the covenants
    on economic, social and cultural rights, and civil and political
    rights; the Convention on the Rights of the Child; and the Convention
    Against Torture are poorly implemented in the Australian system.

  • A factor that
    accompanies this lack of protection of rights in Australian law
    is the refusal of the federal government to ensure compliance of
    the states and territories with Australia's international obligations
    - despite the compliance of all states and territories being an
    obligation undertaken by the federal government under a number of
    treaties, including the Racial Discrimination Convention (which
    requires Parties to the treaty to rescind, nullify, amend or repeal
    all laws that are in conflict with Australia's obligations under
    the treaty) and the civil and political rights covenant. This refusal
    to ensure compliance was most vividly demonstrated in the continued
    refusal to overturn mandatory sentencing laws in the Northern Territory
    and Western Australia.

Concern
was also expressed at:

The
discriminatory practices in relation to native title, through the passage
of the Native Title Act amendments in 1998 and subsequent state and territory
legislation.

The
progress of the reconciliation process and the apparent loss of confidence
in it by Indigenous peoples.

The
inadequate response of the government to the Bringing them home
report, including the failure to provide a national apology and monetary
compensation, and the lack of an effective remedy for those forcibly removed
from their family.

Over-representation
of Indigenous people in the criminal justice system and the lack of interpreter
services for Indigenous peoples in court processes.

The
racially discriminatory impact of mandatory sentencing laws in the Northern
Territory and Western Australia. The extent of continuing discrimination
and disadvantage of Indigenous Australians, and the lack of equality in
Australian society that it reflects. The insufficient action taken to
ensure Indigenous peoples can exercise their right to self-determination;
and Finally, the inadequate protection of Indigenous culture and heritage.
[7]

The
UN committees have undoubtedly identified a range of issues that we will
hear a lot more about over the next few days. The challenge for us is
to identify actions that can be taken to address these concerns. To this
end, my annual Social Justice Report to the federal Parliament recommends
a range of actions that the federal government must take to address these
issues and to progress reconciliation within a human rights framework.
Unfortunately that report remains subject to parliamentary privilege at
this stage. It will, however, be tabled in federal Parliament in approximately
four weeks time.

In addition
to existing human rights standards we should also acknowledge the
importance of those emerging human rights standards specifically relating
to Indigenous peoples. These include the Draft Declaration on the Rights
of Indigenous Peoples; ILO Convention 169; and the proposed American Declaration
on the Rights of Indigenous Peoples by the Organization of American States.
These documents have evolved over nearly twenty years of discussion and
elaborate an Indigenous specific approach to human rights principles.
They are standard setting documents and the principles contained within
are increasingly influencing the development of principles in existing
human rights treaties, such as CERD and the ICCPR.

There
also exists a range of recent international studies and reports on Indigenous
peoples, such as the Miguel Alfonso Martinez study on treaties and agreements
between States and Indigenous peoples; and the two recent reports by Erica
Irene-Daes on Indigenous peoples and their relationship to land, and draft
principles for the protection of Indigenous heritage. These identify relevant
principles and actions that are of relevance to actions to combat racial
discrimination.

I am
now going to put forward three basic propositions about human rights and
Indigenous peoples that I think will be of relevance throughout the next
three days. Each of these propositions directly relates to what I consider
are the unique contribution that Indigenous peoples can make to the World
Conference process.

First,
Indigenous peoples occupy a unique place in the societies where they live.
We have retained social, cultural, economic and political characteristics
that are clearly distinct from those of the other segments of society.
[8]

One
of the key aspects of this uniqueness is our relationship to land. Erica
Irene Daes, in her Final report on Indigenous Peoples and their relationship
to land
, identifies four factors that are unique to Indigenous peoples
in this regard:

 

ii)
A profound relationship which exists between Indigenous peoples and
land, territories and resources;

iii)Social,
cultural, spiritual, economic and political dimensions and responsibilities
of this relationship;

iv)The
collective dimension of this relationship; and

v)The
intergenerational aspect, which is crucial to Indigenous people's
identity, survival and cultural viability.[9]

As Madame
Daes notes in her report, 'the gradual deterioration of Indigenous societies
can be traced to the non-recognition of the profound relationship that
Indigenous peoples have to their lands, territories, and resources as
well as the lack of recognition of other fundamental human rights'[10].

She also notes that:

 

it
is of critical importance to underscore the cultural biases that contributed
to the conceptual framework constructed to legitimise colonization
and the various methods used to dispossess indigenous peoples and
expropriate their lands, territories and resources. It is safe to
say that the attitudes, doctrines and policies developed to justify
the taking of lands from indigenous peoples were and continue to be
largely driven by the economic agendas of States.[11]

In the
Australian context, Madame Daes correctly identifies the Native Title
Amendment Act as an example of this , which 'demonstrates that Eurocentrist
and discriminatory ideas continue to be evident ... and that such attitudes
in national legislation ... trap Indigenous peoples in a legal discourse
that does not embrace their distinct cultural values, beliefs, institutions
or perspectives'[12].

In her
conclusions she recommends that 'the discriminatory aspects of laws and
policies relating to Indigenous peoples and their relationship to land
should be at the forefront of the agenda of the World Conference Against
Racism'[13].

Second,
for Indigenous peoples to be able to fully enjoy their human rights States
must recognise the collective dimension of our culture and identity. To
date, the United Nations human rights system has focused largely on individual
rather than group rights. The recognition of group rights poses a challenge
to traditional notions of sovereignty and is the very difficult next step
in the evolution of human rights principles. How States accommodate Indigenous
people's collective rights within the framework of the nation is a difficult
issue. Questions about the appropriate recognition of self-determination
obviously come to the fore in this regard.

Third,
the other great challenge for States that relates to Indigenous peoples
is how a nation recognises cultural difference and embraces diversity.
As the vision statement of the World Conference Against Racism states:

 

Instead
of allowing diversity of race and culture to become a limiting factor
in human exchange and development, we must refocus our understanding,
discern in such diversity the potential for mutual enrichment, and
realize that it is the interchange between great traditions of human
spirituality that offers the best prospect for the persistence of
the human spirit itself. For too long such diversity has been treated
as threat rather than gift ...[14]

Under
international human rights law, there are circumstances in which States
are obliged to introduce positive measures of protection for Indigenous
culture and identity. This obligation is most explicit in Article 27 of
the ICCPR and Article 30 of CROC, both of which require that members of
minority groups, including Indigenous peoples, 'shall not be denied the
right, in community with the members of their group, to enjoy their own
culture, to profess and practise their own religion, or to use their own
language'.

The
United Nations Human Rights Committee has explained that in order to ensure
that such rights are able to be enjoyed, not only are negative forms of
discrimination prohibited, but that a substantive approach to non-discrimination
may be required through the introduction of positive measures of protection.
The Committee also makes a clear link between the requirement of positive
legal measures and measures to ensure the effective participation of members
of minority communities in decisions which affect them.[15]

The
Committee on the Elimination of Racial Discrimination have also highlighted
the need for effective participation in interpreting the principles of
equality before the law and non-discrimination under that Convention.
In a General Recommendation on the rights of Indigenous peoples, the Committee
called on States Parties to:

 

a.
recognize and respect indigenous distinct culture, history, language
and way of life as an enrichment of the State's cultural identity
and to promote its preservation;

b.
ensure that members of indigenous peoples are free and equal in dignity
and rights and free from any discrimination, in particular that based
on indigenous origin or identity;

c.
provide indigenous peoples with conditions allowing for a sustainable
economic and social development compatible with their cultural characteristics;

d.
ensure that members of indigenous peoples have equal rights in respect
of effective participation in public life, and that no decisions directly
relating to their rights and interests are taken without their informed
consent; (and)

e.
ensure that indigenous communities can exercise their rights to practice
and revitalize their cultural traditions and customs, to preserve
and to practice their languages. [16]

In closing,
I want to focus your minds on the challenge for the next few days. In
a background paper for the upcoming World Conference, Professor Theodor
van Boven expressed concern at the lack of well-defined goals and coherent,
clear and visible action in the struggle against racism and racial discrimination
at this time. He also expressed concern that the previous two United Nations
decades for action to combat racism and the previous two world conferences
were 'events without noise and without effect'. He warned that the current
third decade and world conference 'risks to share the same fate'.[17]

The
challenge of this conference is to ensure that an Indigenous perspective
on racism is clearly articulated, through the formulation of specific
recommendations which are action-oriented and which identify practical
measures to be implemented at the national, regional and international
levels to eradicate racism.

To quote
from the Dakar Declaration by the African Regional Preparatory Conference
to the World Conference Against Racism:

 

availing
ourselves of this historical opportunity requires political will,
intellectual integrity and analytical capacity to draw lessons from
past experiences with the view to avoiding their recurrence in the
future ...[18]

I urge
you to keep this goal in mind. I also look forward to participating in
these proceedings over the next few days and wish you all well in these
important deliberations.

Thank
you.


 

[1]
United Nations General Assembly, Resolution 52/111: Third
decade to combat racism and racial discrimination and the convening of
a world conference against racism, racial discrimination, xenophobia and
related intolerance
, UN Doc: A/RES/52/111, 18 February 1998.

[2]
International Council on Human Rights Policy, The persistence
and mutation of racism
, Versoix, Switzerland 2000.

[3]
Van Boven, T, United Nations strategies to combat racism and racial
discrimination: past experiences and present perspectives, Background
Paper, UN Doc: E/CN.4/1999/WG.1/BP.7, 28 February 1999, p5.

[4] Ibid.

[5]
Martinez, M, Study on treaties, agreements and other constructive
arrangements between States and Indigenous
populations, Final Report,
Un Doc: E/CN.4/Sub.2/1999/20, 22 June 1999, Para 243.

[6] See further General Assembly,
Resolution 52/111, op.cit, para 28.

[7] See further: Committee on
the Elimination of Racial Discrimination, Concluding Observations by the Committee on the Elimination of Racial
Discrimination: Australia
, UN Doc: CERD/C/304/Add.101, 19/04/2000; Human Rights Committee, Concluding
observations of the Human Rights Committee: Australia,
UN
Doc:CCPR/CO/69/AUS, 28 July 2000; Committee on Economic, Social and
Cultural Rights, Concluding Observations of the Committee on Economic,
Social and Cultural Rights : Australia.
UN Doc:. E/C.12/1/Add.50,
01/09/2000; and Committee against Torture, Conclusions and Recommendations
of the Committee against Torture : Australia
, UN Doc: CAT/C/XXV/Concl.3,
21/11/2000.

[8]
United Nations High Commissioner for Human Rights, Fact sheet No.9
(Rev.1), The Rights
of Indigenous Peoples
,

[9]
Daes, E, Indigenous peoples and their relationship to land, Final
Working Paper, Un Doc: E/CN.4/Sub.2/2000/25, 30 June 2000, para 19.

[10] Ibid, para 20.

[11] Ibid, para 22.

[12] Ibid, para 31.

[13] Ibid, para 159.

[14] World Conference against
Racism, Racial Discrimination, xenophobia and related intolerance, Tolerance
and diversity: A vision for the 21st century
, Office
of the High Commissioner for Human Rights, Geneva 2000.

[15]
Human Rights Committee, General Comment
23 on the rights of minorities (Article 27)
(1994), para 7.

[16]
Committee on the Elimination of Racial Discrimination, Genera Recommendation
XXIII - Indigenous Peoples
, 18/08/97, CERD/C/51/Misc.13/Rev.4

[17]
Van Boven, T, United Nations strategies to combat racism and racial
discrimination: past experiences and present perspectives, Background
Paper, UN Doc: E/CN.4/1999/WG.1/BP.7, 28 February 1999.

[18]
Dakar Statement, Declaration of the African Regional Preparatory Conference,
Un Doc: WCR/RCONF/DAKAR/2001/L.1 REV.3, 24 January 2001, para 7.

Last
updated 1 December 2001

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