Self-determination and the demise of the Aboriginal and Torres Strait Islander Commission
Indigenous Australia and the right to self-determination
Indigenous peoples globally have adopted international human rights standards as a framework for their relationship with the State. Therefore the right to self-determination has become established as the principle underpinning Indigenous advocacy globally.
The right to self-determination is used by Indigenous Australia to conceptualise for mainstream Australia the distinct cultural and structural claims that Aboriginal and Torres Strait Islander peoples are making of the Australian State. The purpose of articulating a framework based upon the right to self-determination is to recognise the distinctiveness of Aboriginal and Torres Strait Islander culture in Australia and is aimed at facilitating the achievement of full and effective participation of Aboriginal and Torres Strait Islander peoples in the decisions that affect them.
Problems with the language of self-determination
National debates in Australia about Indigenous issues frequently result in confused public debates about the meaning of the right to self-determination. When the Federal government in Australia abolished ATSIC in 2005, it declared that self-determination had failed. Yet ATSIC was not a full expression of self-determination and the government had misconstrued the meaning of the right to self-determination because it is a right that cannot be granted or taken away, rather it is an inherent right that all peoples have by virtue of being human. However, the structural form it takes within the State is contentious because of concerns that it is destabilising and could potentially threaten the territorial integrity of the State. For these reasons, self-determination as it relates to indigenous peoples is controversial, even though the genesis of Indigenous peoples’ inherent right to selfdetermination pre-dates the modern State.
Nevertheless these fears are misguided, because the claims made by contemporary Indigenous peoples within States, such as Indigenous Australians, including those claims articulated to the United Nations working groups, do not entail secession or separatism. According to the Council for Aboriginal Reconciliation:
…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 programmes. 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.1
Another issue raised in relation to the use of the term ‘self-determination’ in these claims is that such a term is void of any reference to Indigenous women’s specific issues. This may be because they are aspirational statements of Indigenous self-determination couched in neutral language. This does not necessarily mean that Indigenous women do not agree with or benefit from those broad claims. Even so, an amorphous Indigenous claim to selfdetermination can often shield from greater inquiry the very real differences between the socio-economic status of Indigenous men and women within the state, and makes ill-conceived assumptions about the neutrality of legal and political systems within liberal democratic States. The assumption of homogeneity in the word ‘Indigenous’ masks gendered differences in terms of opportunity and access to legal and political systems within the States, and, for this reason, any extensive examination of the meaning of selfdetermination must include a consideration of Indigenous women’s specific issues and concerns.
What is self-determination to Indigenous Australia?
The interests and claims of Indigenous Australians are as diverse as the nation itself. Aboriginal and Torres Strait Islander communities in far North Queensland have very different challenges to urban Indigenous communities in South East Queensland, Perth or Sydney. Indeed the concerns of rural and remote Indigenous communities are vastly different to the concerns of urban Indigenous Australia. Nevertheless it is possible to generalise about what constitutes self-determination for Aboriginal and Torres Strait Islander peoples.
The view that self-determination is fundamental to Indigenous Australian aspirations is reflected in a number of key national Indigenous documents such as the 1998 Barunga statement and the 1993 Eva Valley statement.2 The Barunga statement was presented to Prime Minister Bob Hawke in 1998 and included the following principles:
• a national Aboriginal and Torres Strait Islander representative body;
• recognition of Aboriginal customary law;
• control of ancestral lands;
• protection of sacred sites and artefacts and Indigenous knowledge;
• compensation for the loss of lands;
• repatriation of human remains;
• recognition of fundamental international human rights including economic, social and cultural rights.
The Eva Valley statement was intended to serve as a framework for the Commonwealth in response to the High Court decision in Mabo.3 It highlighted the following as crucial for self-determination:
• improved legislative entrenchment and recognition of international human rights law;
• a treaty process to negotiate a settlement with Aboriginal and Torres Strait Islander peoples.
The right to self-determination has also been identified as crucial in a number of major national inquiries into the concerns of Indigenous Australia.4 In 2000, the Council for Aboriginal Reconciliation’s Australian Declaration towards Reconciliation proclaimed that, ‘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’.5
Self-determination was identified in the Final Report of the Royal Commission into Aboriginal Deaths in Custody as fundamental to addressing the underlying causes of Indigenous Australians’ interaction with, and overrepresentation in, the criminal justice system.6 The Commission stated that self-determination must be the guiding principle in developing and implementing solutions to the criminal justice crisis, and to achieve this serious consideration needed to be given to determining the tenets of selfdetermination.
The enhancement and development of opportunities for increased Aboriginal self-determination is crucial to the improvement of all aspects of Aboriginal life. As noted above, little agreement exists as to the definition of self-determination and the processes available to implement a policy of enhanced levels of self-determination. It is critical that these questions should be settled and, until this is done, there are a wide range of agencies and organisations in a position to usurp or deny the decision-making role that Aboriginal people should have. Some of these organisations have little Aboriginal involvement at any level in their processes.7
Self-determination was also highlighted in the Australian Law Reform Commission’s Report into the Recognition of Aboriginal Customary Laws. It was viewed as being integral to addressing the piecemeal and haphazard recognition of Aboriginal customary law in the Australian legal system.8 To counter the misuse of Aboriginal customary law that may occur in an adversarial legal contest, the ALRC and HREOC have argued that participation by Aboriginal and Torres Strait Islander communities in the process can assist in working out solutions and in determining what is legitimate customary law. The most recent Law Reform Commission of Western Australia inquiry into Aboriginal customary laws highlighted self-determination in its Final Report as being key to improving Indigenous peoples health, well-being and relationship with the State.
It is the Commission’s opinion that in order for Western Australia to effectively engage with Aboriginal people in pursuing these aspirations it is necessary to consider ways of giving Aboriginal people greater control over, and substantive power within, the decision-making processes that affect their lives.9
The final report of the ‘Bringing them Home’ inquiry also had as one of its recommendations the recognition of the right to self-determination for Aboriginal and Torres Strait Islander peoples.10 This inquiry highlighted the importance of Indigenous control over decisions made by authorities about the control and care of Indigenous children. In this regard, selfdetermination was reflected in the recommendations, which advocated more Indigenous youth and welfare workers, community involvement in the development and implementation of child welfare policies and, most importantly, taking into account Indigenous culture when making decisions about Indigenous children.
The right of self-determination in international law
The right to self-determination is the right of peoples to determine their own economic, social and cultural destiny. It is a right that has its genesis in political theory, in particular that of the Enlightenment period, influencing both the French and American Revolutions. It developed against a political landscape that saw the concentration of power in institutions such as the Monarch, the Church and the ruling elites who were all unaccountable to the citizens. As such, the right to self-determination developed as a right of all peoples to participate in the internal governance of the State and for the State to be accountable to its citizenry, free from external interference.
Today, the right to self-determination is a fundamental right that is enshrined in common Article 1 of the International Covenant on Civil and Political Rights (hereafter ICCPR) and the International Covenant on Economic and Social, Cultural Rights (hereafter ICESCR)11: 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.
For a long time, the right to self-determination was viewed as only applying to colonial peoples and territories in the context of the decolonisation period following the Second World War. As a result, the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations (‘Friendly Relations Declaration’)12 came as a significant development in terms of the evolution of the international political and legal understanding of the right to self-determination beyond the decolonisation context. This declaration went further than any other international instrument in making clearer to States the elements of the right to self-determination.
By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status, and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.13
More importantly, it contained a disclaimer against any action that would compromise the territorial integrity of the State and, in doing so, it linked this disclaimer to an understanding of the internal aspect of self-determination. This gave the meaning of self-determination as government representing the whole people belonging to the Territory, without distinction as to race, creed and colour:
Nothing in the foregoing paragraphs shall be construed as authorizing 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 principle 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.14
This is important, because States continue to deny the application of the right to self-determination to Indigenous peoples in international law despite these safeguards. It is also important to emphasise the developments in understanding the right to self-determination from a predominantly external context to an emphasis on internal self-determination, in particular democratic governance, because it allows people to participate in decision making within a State.
This argument has become increasingly important since the end of the Cold War. The norm of democratic governance is said to derive from the right to political participation as established in the United Nations Charter, Article 21 of the Universal Declaration of Human Rights (UDHR) and Article 25 of the International Covenant on Civil and Political Rights (ICCPR). The United Nations Special Rapporteur on Indigenous Issues has argued in relation to Indigenous peoples that:
the denial of self-determination is essentially incompatible with true democracy. Only if the peoples right to self-determination is respected can a democratic society flourish.15
Currently, a United Nations Working Group of the Commission on Human Rights is attempting to seek agreement on a draft of the Declaration on the Rights of Indigenous Peoples, so as to enshrine in international law the distinct nature of Indigenous peoples and their associated rights as peoples. The right to self-determination is the key principle underpinning Indigenous peoples’ advocacy in international law and therefore it is the cornerstone upon which the entire United Nations Draft Declaration on the Rights of Indigenous Peoples (DDRIP) is based. According to the United Nations Indigenous caucus: ‘The right of self-determination is the heart and soul of the declaration. We will not consent to any language which limits or curtails the right of self-determination.’16
The right to self-determination is protected in Article 3 of the DDRIP: 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. Furthermore in Article 31, the right to self-determination is explained in practical terms:
Indigenous peoples, as a specific form of exercising their right to selfdetermination, 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.