FROM WELFARE TO RIGHTS.
The past twelve months have seen considerable discussion of the need for new policy in Indigenous affairs, new directions and new leadership. Commentators have opined that Indigenous Australians have become crippled by the effects of welfare dependency. There has been a tendency to shift the blame for the state of Indigenous health, employment and housing to Indigenous communities themselves. Arguments about rights, it has been claimed, are the preoccupation of an unrepresentative handful of Indigenous ideologues, an unproductive distraction from the real business of doing something about Indigenous disadvantage.
In March 1999, the United Nations Committee on the Elimination of Racial Discrimination expressed concern about the incompatibility of the 1998 amendments to the Native Title Act 1993 with Australia's obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. The Committee noted: `While the original 1993 Native Title Act was delicately balanced between the rights of Indigenous and non-Indigenous title holders, the amended Act appears to create legal certainty for governments and third parties at the expense of Indigenous title'. The Government responded, calling the Committee's comments `unbalanced' and `an insult to Australia'. In its formal response, the Government stated that its `approach in Indigenous affairs seeks to overcome disadvantage and support the genuine aspirations of Indigenous peoples to achieve greater self-sufficiency'. In July 1999, the Minister for Aboriginal and Torres Strait Islander Affairs, Senator Herron, told the UN Working Group on Indigenous Populations that `until quite recently it had been impossible to have an honest discussion about individual responsibility and the right to welfare'. There was what the Senator called `the great silence' at the core of much discussion of Indigenous policy issues: [Flew dared speak of some of the fundamental problems nurtured within many Indigenous communities themselves.
Whilst recent discussion about the crippling effects of welfare has implied that this is a condition desired and perpetuated by Indigenous communities, such talk ignores the fact that Indigenous Australians have been arguing for greater control over, responsibility for and independence in their own lives and communities. Surely the critical question for policy-makers is whether the attainment of better economic and social outcomes alone will achieve greater autonomy and hence real equality. Arguments about the desirability of better economic and social outcomes must not be allowed to mask a retreat from recognising distinct Indigenous rights. Policies which do not comprehend the distinct status of Indigenous peoples, and their right to determine their own affairs, are ultimately assimilationist. The ongoing suffering of the Stolen Generations must serve as a warning against the reintroduction of any policy grounded in such a discredited philosophical approach.
Indigenous Australians have consistently asserted that there is no right more fundamental to them than that of self-determination. The concept of self-determination underlies the establishment and operations of ATSIC and other Aboriginal organisations. It has been said to underpin a variety of objectives, such as rights to land and waters, including coextensive rights, and to compensation for dispossession; compensation for the stolen generations; recognition of law and custom; the reassertion and development of community self-governance; the negotiation of flexible forms of self-government and regional agreements; forms of Indigenous political representation in different levels of Australian government; the negotiation of involvement in Commonwealth, State/Territory and local government policy, planning and service delivery; the development of an Indigenous economic base; sharing in mineral and other resources; rights in relation to the protection of sites, and cultural and intellectual property; and the authority to negotiate treaties, agreements, and documents of reconciliation.
From 1972 until a Cabinet decision in August 1998, self-determination was the policy of successive Australian Governments in the area of Indigenous affairs. According to the Foreign Minister, Alexander Downer: `We don't want to see a separate country created for Indigenous Australians. We will ... be arguing ... that it might be better to use the term self-management rather than leaving an impression that we are prepared to have a separate Indigenous state.' The abandonment of self-determination as a cornerstone of Indigenous affairs policy marked a serious deterioration in relations between the Australian Government and Indigenous organisations, communities and leaders. Whilst the self-determination claims of Indigenous peoples present jurisprudential and philosophical challenges for all post-colonial states, it is unclear why the Australian Government has chosen to jettison a principle which Indigenous Australians have emphasised as central to their aspirations. It is significant that not a single Indigenous organisation in Australia has expressed a desire for independent statehood. As Mick Dodson stated on behalf of ATSIC at the fourth session of the UN Commission on Human Rights Working Group on the Draft Declaration on the Rights of Indigenous Peoples in December 1998: `The image of separate Black states is a misleading and mischievous representation of Indigenous Australians' actual aspirations in relation to self-determination.'
On 20 October 1999 at the fifth session of the same working group, a joint statement by Australian Indigenous organisations that the `inflexible and unhelpful' position of the Australian Government relation to the concept of self-determination represented `a significant step away from the mutual understanding' that participants in the development of the UN declaration were seeking to achieve. At the session, Australia was the only government delegation to speak unequivocally against the inclusion of the principle of self-determination in the draft UN declaration. The United States, formerly viewed as the `hard-liner' and `spoiler' in the working group, announced that it had initiated an inter-agency review to revisit its opposition to the principle. This shift is in part the result of the difficulty of the United States in reconciling a domestic policy of self-determination for Indian Tribal Governments with opposition to its recognition in UN standard-setting activities. In the working group, Argentina, Bolivia, Brazil, Canada, Chile, Colombia, Denmark, Fiji, Finland, Mexico, Norway, New Zealand, Sweden, Switzerland and Venezuela have recognised the importance of the principle of self-determination, subject to adequate protection of states' territorial integrity.
In their intervention of 20 October 1999, the Indigenous Australian delegation reminded States of their obligations under other international human rights treaties. Article one of the International Covenant on Civil and Political Rights (ICCPR), for example, affirms the right of all peoples to self-determination. The Human Rights Committee, the body responsible for supervising compliance with the ICCPR, had on the previous day asked the government of Norway: `What is the position of Norway in respect of the Sami people's right of self-determination?' And on 7 April 1999 the Human Rights Committee urged the Government of Canada to report adequately on implementation of article one in its next periodic report to it. In relation to article one, the Committee referred to issues of land and resource allocation, and recommended that `the practice of extinguishing inherent rights be abandoned as incompatible with article one of the Covenant'. Australia is due to present its long-overdue third periodic report to the Human Rights Committee in July 2000.
Despite recent talk about new policy, for many Indigenous Australians these `new' directions must have a disconcertingly familiar and anachronistic air about them. It is tolerably clear that no settlement with Indigenous Australia will be possible until Australian governments are able to grapple with fundamental and difficult questions concerning the basis of relationships between Indigenous and non-Indigenous peoples in Australia. Any durable basis for future relationships must surely respect the aspirations of Aboriginal and Torres Strait Islander peoples to decide their own priorities and the directions of their own lives. Rather than reverting to policies which have failed Indigenous Australians in the past, policy-makers ought be encouraged to look abroad to a diverse range of models for rebuilding Indigenous societies and [re]constructing relationships with non-Indigenous polities. Experience in other jurisdictions offers much valuable guidance in the difficulties in, and opportunities for negotiating and implementing constitutional, legal and political change, inaugurating new relationships and revitalising and strengthening communities at the local level.
Sarah Pritchard lectures in law at the University of New South Wales.
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|Date:||Feb 1, 2000|
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