The Aboriginal Truth.
I was watching a documentary the other day on the Aborigines in Australia. I find it very fascinating that they have somewhat captured the world's attention despite being considered a minority somewhat. I myself come from a small tribe of about 6000, hailing from the Kelabit Highlands deep in the heart of Borneo so I decided to do some research on the Aborigines and my previous article on self determination (in other words, I could not think of another research topic.)
Recent years have witnessed an evolution of the right of self-determination. In the post Second World War context, it was principally thought of as a way in which the decolonisation process could be legitimised and facilitated. The right is now beginning to be discussed in terms of the development of democratic structures and minority and indigenous rights within existing states. Self-determination has thus been defined by the International Court of Justice (in the West-Saharan case) as: The need to pay regard to the freely expressed will of peoples. It is important to stress that for indigenous peoples the term self-determination does most often not imply secession from the state.
Australia, as a member of the United Nations (UN) has treaty obligations. A treaty is an agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as (international) agreement, protocol, covenant, convention, exchange of letters, et cetera. Regardless of the terminology, all of these international agreements under international law are equally treaties and the rules are the same.
Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) states that self-determination is the right of all peoples to 'freely determine their political status and freely pursue their economic, social and cultural development'. In accordance with this right, 'All peoples may, for their own ends, freely dispose of their natural wealth and resources' and there is an obligation on the State that under no circumstances will they deprive a people 'of its own means of subsistence'. The State is obliged 'to promote the realisation of the right to self-determination, and shall respect that right, in conformity with the Charter of the United Nations'.
The requirement that self-determination be realised 'in conformity with the Charter of the United Nations' effectively guarantees that the recognition of self-determination will not form the basis of secession of Indigenous peoples in colonial countries such as Australia. It is notable that this provision is also incorporated into the Draft Declaration on the Rights of Indigenous Peoples as Article 45 states that actions contrary to the Charter of the United Nations are not permitted.
In Australia's view, self-determination is not a static concept, but rather an evolving right which includes equal rights, the continuing right of peoples to decide how they should be governed, the right of people as individuals to participate fully in the political process (particularly by way of periodic free and fair elections) and the right of distinct peoples within a state to make decisions on and administer their own affairs (relevant both to indigenous peoples and to national minorities). This proposition finds support in the words of the Article 1 of the Covenants, together with Article 21 of the Universal Declaration on Human Rights and Article 25 of the International Covenant on Civil and Political Rights. Australia has also repeatedly stressed the point made above that the right of self-determination does not, except in the most exceptional circumstances, equate to a right of secession.
Aboriginal Law has not been recognised historically in Australia. This can be traced back to the ‘settlement’ of Australia, and the assumption that it was terra nullius, legally defined as a land uninhabited by a recognised sovereign, or by a people with recognisable institutions and laws.
Self-determination for Australia's indigenous peoples has been Government policy since 1972. This encompassed basic local government functions, ranging from land dealings and management of community centers to road maintenance and garbage collection, as well as setting education programmes and standards in their local schools. In 1990 the House of Representatives Standing Committee on Aboriginal Affairs defined self-determination as:
“... Aboriginal control over the decision-making process as well as control over the ultimate decision about a wide range of matters including political status, and economic, social and cultural development. It means Aboriginal people having the resources and capacity to control the future of their own communities within the legal structure common to all Australians”.
As for legal recognition within Australia itself, legislation was proposed to recognise the pre-existing rights of Aboriginal and Torres Strait Islander people to self-government, along with their choice to progressively assume responsibility for a range of government powers. The paper recommended Aboriginal and Islander communities take on the power of existing local authorities and many of the State and Commonwealth government powers.
The Federal Government assented (with certain conditions) and a central Aboriginal administrator called Aboriginal and Torres Strait Islander Commission (ATSIC) was appointed and constituted to allocate and distribute funds to the various Aboriginal communities and to liaise with the Federal Government regarding the welfare of Aboriginal areas that required improvement and funding. Some argued that this was a form of self-determination or were, at the very least, initial step towards self-determination because Aboriginal people were becoming a 'self-contained' people within Australia. In addition, Aboriginal people had recently acquired native-title land rights following the Mabo decision of the High Court of Australia in the late 1980s.
In 2006, however, after a swirl of controversy and scandal, the Federal Government terminated ATSIC's commission and reassumed full control of Aboriginal welfare and allocating/distributing funding.
I am of the opinion that until a treaty or legislation is passed to give legal effect to the Aborigines right to self-determination, there will always be a gap in the operation of self-determination as a right, especially in the Australian context. Currently, as there is no specific statute governing the Aborigines right to self-determination, one may not be too sure as to how well one’s rights are protected, for example in matters involving land. There needs to a be a reform in this area of law, to provide for certainty in the long run and to aim for further development in the scope of law, especially where Australia is concerned.
Sources:
1. www.iwgia.org (Heading 1.5)
2. The Australian Human Rights Commission (http://www.hreoc.gov.au) (Heading 2.1 and 2.2)
3. Creative Spirits (http://www.creativespirits.info) (Heading 2.4)
Recent years have witnessed an evolution of the right of self-determination. In the post Second World War context, it was principally thought of as a way in which the decolonisation process could be legitimised and facilitated. The right is now beginning to be discussed in terms of the development of democratic structures and minority and indigenous rights within existing states. Self-determination has thus been defined by the International Court of Justice (in the West-Saharan case) as: The need to pay regard to the freely expressed will of peoples. It is important to stress that for indigenous peoples the term self-determination does most often not imply secession from the state.
Australia, as a member of the United Nations (UN) has treaty obligations. A treaty is an agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as (international) agreement, protocol, covenant, convention, exchange of letters, et cetera. Regardless of the terminology, all of these international agreements under international law are equally treaties and the rules are the same.
Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) states that self-determination is the right of all peoples to 'freely determine their political status and freely pursue their economic, social and cultural development'. In accordance with this right, 'All peoples may, for their own ends, freely dispose of their natural wealth and resources' and there is an obligation on the State that under no circumstances will they deprive a people 'of its own means of subsistence'. The State is obliged 'to promote the realisation of the right to self-determination, and shall respect that right, in conformity with the Charter of the United Nations'.
The requirement that self-determination be realised 'in conformity with the Charter of the United Nations' effectively guarantees that the recognition of self-determination will not form the basis of secession of Indigenous peoples in colonial countries such as Australia. It is notable that this provision is also incorporated into the Draft Declaration on the Rights of Indigenous Peoples as Article 45 states that actions contrary to the Charter of the United Nations are not permitted.
In Australia's view, self-determination is not a static concept, but rather an evolving right which includes equal rights, the continuing right of peoples to decide how they should be governed, the right of people as individuals to participate fully in the political process (particularly by way of periodic free and fair elections) and the right of distinct peoples within a state to make decisions on and administer their own affairs (relevant both to indigenous peoples and to national minorities). This proposition finds support in the words of the Article 1 of the Covenants, together with Article 21 of the Universal Declaration on Human Rights and Article 25 of the International Covenant on Civil and Political Rights. Australia has also repeatedly stressed the point made above that the right of self-determination does not, except in the most exceptional circumstances, equate to a right of secession.
Aboriginal Law has not been recognised historically in Australia. This can be traced back to the ‘settlement’ of Australia, and the assumption that it was terra nullius, legally defined as a land uninhabited by a recognised sovereign, or by a people with recognisable institutions and laws.
Self-determination for Australia's indigenous peoples has been Government policy since 1972. This encompassed basic local government functions, ranging from land dealings and management of community centers to road maintenance and garbage collection, as well as setting education programmes and standards in their local schools. In 1990 the House of Representatives Standing Committee on Aboriginal Affairs defined self-determination as:
“... Aboriginal control over the decision-making process as well as control over the ultimate decision about a wide range of matters including political status, and economic, social and cultural development. It means Aboriginal people having the resources and capacity to control the future of their own communities within the legal structure common to all Australians”.
As for legal recognition within Australia itself, legislation was proposed to recognise the pre-existing rights of Aboriginal and Torres Strait Islander people to self-government, along with their choice to progressively assume responsibility for a range of government powers. The paper recommended Aboriginal and Islander communities take on the power of existing local authorities and many of the State and Commonwealth government powers.
The Federal Government assented (with certain conditions) and a central Aboriginal administrator called Aboriginal and Torres Strait Islander Commission (ATSIC) was appointed and constituted to allocate and distribute funds to the various Aboriginal communities and to liaise with the Federal Government regarding the welfare of Aboriginal areas that required improvement and funding. Some argued that this was a form of self-determination or were, at the very least, initial step towards self-determination because Aboriginal people were becoming a 'self-contained' people within Australia. In addition, Aboriginal people had recently acquired native-title land rights following the Mabo decision of the High Court of Australia in the late 1980s.
In 2006, however, after a swirl of controversy and scandal, the Federal Government terminated ATSIC's commission and reassumed full control of Aboriginal welfare and allocating/distributing funding.
I am of the opinion that until a treaty or legislation is passed to give legal effect to the Aborigines right to self-determination, there will always be a gap in the operation of self-determination as a right, especially in the Australian context. Currently, as there is no specific statute governing the Aborigines right to self-determination, one may not be too sure as to how well one’s rights are protected, for example in matters involving land. There needs to a be a reform in this area of law, to provide for certainty in the long run and to aim for further development in the scope of law, especially where Australia is concerned.
Sources:
1. www.iwgia.org (Heading 1.5)
2. The Australian Human Rights Commission (http://www.hreoc.gov.au) (Heading 2.1 and 2.2)
3. Creative Spirits (http://www.creativespirits.info) (Heading 2.4)
Labels: law, legal research, the UK
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