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HREOC Social Justice Report 2002: Self-determination - the freedom to 'live
well'

Social Justice Report 2002

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  • 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.