The rights of indigenous populations

Rob Riley

Rob Riley is chairman of the National Aboriginal Conference.  This is the statement he delivered to the United Nations Working Group on Indigenous Populations held in Geneva on July 31 and August 1, 1984.  Rob Riley's view is that sovereignty over land in Australia must be removed from the Crown and Parliaments and returned to the original occupants, as the basis of Aboriginal self-determination.

LAND RIGHTS & SOVEREIGNTY

In considering the matter of the evolution of standards concerning the rights of indigenous peoples we wish to draw attention to the crucial matter of Aboriginal land rights.

The basis of Aboriginal rights to land in Australia is the original ownership and occupation of the entire continent by the Aboriginal people.  It is on that basis also that the Torres Strait Islanders claim rights to land in the islands of the Torres Strait separating Australia from New Guinea.

Aboriginal people occupied Australia without challenge for at least fifty thousand years prior to British settlement in 1788.  That occupation is aptly described in the terms of the law of nations as the exercise of Aboriginal sovereignty over Australia.  Sovereignty was exercised by up to five hundred tribal governments throughout the continent.  Each self-governing unit had a defined territory and population and had developed laws governing the relations between tribes and between the tribes and other peoples.

The Aboriginal and Torres Strait Islander peoples of Australia assert that the failure of the British and successive Australian governments to recognise Aboriginal sovereignty does not diminish original sovereignty as the source of Aboriginal land rights.  We do not accept that Aboriginal rights in land are merely those which the Crown may choose to grant under the feudal doctrine that the root of title to all land in England and its colonies is held by the Crown.

Land titles which recognise merely possessory or usufructuary rights do not accord with the Aboriginal reality of land as the source of all being, law and religion.

RESOLUTION

The present Australian Labor Government has also explicitly and firmly rejected Aboriginal claims to sovereignty.  Speaking to a resolution which he moved in the Australian Parliament in December 1983 the Minister for Aboriginal Affairs, Mr. Clyde Holding, stressed that the issue of Aboriginal sovereignty was not negotiable;  "Sovereignty is vested in the Crown and Parliaments, for a single people united in the Commonwealth."

There is no recognition in Australia that Aboriginal people have been denied the right to real and effective self-determination, a fundamental human right guaranteed in numerous instruments of the United Nations.  Aboriginal people have not been accorded the right to decide if there is to be in fact "a single people" in Australia.  Without recognition of Aboriginal land rights there can be no possibility of Aboriginal people exercising freely the right of self-determination.

Whilst the Australian Government and some State Governments have legislated for the return of some lands to the Aboriginal people, this has not been done in recognition of Aboriginal sovereignty or as a basis for the exercise of Aboriginal self-determination under international law.  At best, legislative schemes have been adopted in theory as a recognition of prior occupation and ownership of territory in Australia.  The resolution introduced but not voted on in the Australian Parliament last December acknowledged original Aboriginal and Torres Strait Islander ownership of Australia and the subsequent total disregard of indigenous rights upon colonisation.  It recognised that one of the special measures which must be taken to rectify the injustice is Parliamentary recognition of Aboriginal and Torres Strait Islander people's rights to land, in accordance with five stated principles as outlined by the Minister yesterday.

However, already there are indications that the Commonwealth Government will follow the States in not giving full effect to general principles.  State legislation has been passed "in recognition of prior Aboriginal ownership" but allowing only for Aboriginal communities to claim unalienated Crown land not required for other public purposes and without a guaranteed source of funds in the form of compensation or reparation to enable economic and social development.

Similarly, the Minister for Aboriginal Affairs has indicated that Aboriginal communities will need to persuade a judicial Claims Tribunal that they traditionally own or have long occupied certain categories of land before a claim can be established.  This will disentitle many communities where dispossession and dispersal have been greatest.  If past legislative practice is followed it will also entail Aboriginal land rights being dependent upon the ability of lawyers and anthropologists to persuade other white professionals that Aboriginal interests in land should outweigh competing commercial interests.  The Minister for Aboriginal Affairs has responded to the anti land rights lobby of mining companies and pastoralists by giving assurances that so called "private" land will not be claimable under Federal land rights legislation.  The Federal Government's concern to accommodate the different state legislative and administrative structures poses the threat that Aboriginal people in different parts of the country will receive different forms of title to their lands and that not all will receive the inalienable title which is demanded by Aboriginal people.

INTERNATIONAL STANDARDS

The National Aboriginal Conference supports the purposes of the UN Working Group on Indigenous Populations and states that the attainment of indigenous rights for populations such as the Aboriginal and Torres Strait Islanders of Australia will only be achievable if international standards are defined, and if non-indigenous governments remain under scrutiny in terms of their domestic and foreign dealings with indigenous peoples.

The National Aboriginal Conference is anxious to see the Working Group proceed with the task of the drafting of international standards concerning the rights of indigenous peoples.  We believe that the only fair and just principle to be adopted in relation to indigenous land rights is one which recognises the inherent right of indigenous peoples to what white legal systems interpret as the ownership of our lands;  a right which is not dependent upon grants from colonising governments.  The system under which those lands are to be held will vary according to the traditions of the many indigenous peoples of the world, but land rights must encompass the right to own and control the natural resources of the land.

Our experience in Australia demonstrates the consequences which follow from the absence of international standards, and highlights the need for effective machinery to oversee the implementation of the standards which are to be developed.

OPPOSITION

In Australia, legislative schemes now in existence and those which are proposed, are under attack from elements which regard Aboriginal rights as an electoral liability.  At the national level, the leader of the opposition Liberal Party has stated as recently as one week ago that if his party wins at the next election, it will repeal any national land rights legislation which the current Labor Government may introduce.  This threat to Aboriginal interests comes from a political party which under the previous leadership of then Prime Minister Mr. Malcolm Fraser presented itself to the world as the champion of human rights in South Africa and as the supporter of liberation movements in places such as what is now Zimbabwe where other black peoples were seeking to throw off the yoke of colonialist oppression.

ENFORCEMENT OF INDIGENOUS RIGHTS

Aboriginal people in Australia currently have no avenue through which to seek redress against such violations.  There is no constitutional guarantee of indigenous rights in Australia.  In fact, they have never been defined by Government.  Nor do we have access to the International Court of Justice.  The current proposal by the Labor Government for a legislative Bill of Rights does not include provision for the protection of collective indigenous rights.

We look to this Working Group to begin the process of drafting international standards on the rights of indigenous peoples so that the international community will have a yardstick against which to measure the actions of successive Australian Governments in their relations with the Aboriginal peoples of Australia and our indigenous brothers and sisters specifically in East Timor, West Papua, and the Pacific region, and more generally throughout the world.

GOVERNMENT CONTROL

There are also some matters which are relevant to the consideration of the review of developments which I wish to report to the Working Group.

The first is to report upon the continuing and oppressive control which is maintained by the Australian Government and its agencies over Aboriginal organisations in Australia.  Most Aboriginal organisations are dependent upon Government for funding and it is through the manipulation of funding arrangements that Governments attempt to direct the activities and policies of Aboriginal organisations and communities.  Internal self-determination is impossible under such circumstances.

QUEENSLAND'S APARTHEID

The second matter is the continuing practice of apartheid and enforced segregation in the State of Queensland.  Aboriginal reserve communities have still not been issued with title to their lands but the recently enacted Community Services legislation in that State deprives reserve residents of the franchise in local government elections.  This is in blatant violation of Article 25 of the International Covenant on Civil and Political Rights and Article 5 (c) of the International Convention on the Elimination of All Forms of Racial Discrimination.  The Federal Government has remained silent on this matter.

In fact, the Federal Government is adding to the oppression of Queensland Aborigines through its Community Development Employment Program.  Under this Program, Aborigines are denied the right to unemployment benefits which is accorded to all other Australian citizens.  An amount equal to the unemployment benefit is paid to the community council for employment programs but the residents do not have the choice of participating in the program -- they are forced to do so.  Additionally, many Aboriginal people who are employed on Queensland reserves are not paid the award wage for their particular industry.