Aboriginal and Torres Strait Islander People and Citizenship

Aboriginal and Torres Strait
Islander People and Citizenship

Speech by Michael Dodson,
Aboriginal and Torres Strait Islander Social Justice Commissioner, at
the Complex Notions of Civic Identity Conference, University of New South
Wales, 20 August 1993

Introduction

It is the intention
of this paper to explore the concept of citizenship, and some associated
ideas in order to present a perspective on the relevance of citizenship
to Aboriginal and Torres Strait Islander people. I will seek to examine
some key principles in relation to citizenship which must be established
in order to ensure full and just respect for the rights and aspirations
of Aboriginal and Torres Strait Islander peoples.

Citizenship as it
applies in the contemporary socio-political context implicitly contains
reference to the concepts of nationhood, social organisation, and the
structural relationship between peoples and the Nation State. For Aboriginal
and Torres Strait Islander peoples, each of these terms, as they are currently
applied in Australia, are fraught with problems, because they are largely
built on assumptions which a priori exclude the claims of Aboriginal people
to full political, social and cultural recognition as the first peoples
of Australia.

I will state from
the outset, that the broad framework I have adopted to discuss this issue
stems from the proposition that as Aboriginal and Torres Strait Islander
people, it may be suggested that we have two citizenships; one in relation
to our indigenous nations, and one in relation to the Australian nation.

Thus, any discourse
concerning Aboriginal and Torres Strait Islander people and citizenship
must begin with two very simple, but crucially important questions. First
of all, "Citizenship within which society?"; and secondly, "recognition
by which political system?" From there you can move on to look at
the rights and duties of citizens, and in particular the categories and
types of rights which must be guaranteed in order to give full recognition
to Aboriginal and Torres Strait Islander peoples.

Nations, colonisation
and peoples; reassessing the status quo

There is a complex
body of theory about the relationship between the civil society and political
structures, just as there are diverse systems of domestic and international
law and politics which institute particular models of socio-political
organisation. However, today it is possible to look to almost any part
of the globe to see a breakdown in those systems, and a demand from peoples
for systems which will better meet their needs and aspirations. Not just
in Australia, but internationally, Indigenous peoples constitute one of
the main classes of peoples for whom the existing dominant models of political
organisation are not only not working, but are themselves oppressive.
It is thus of great importance to us that we take the time to explore
new concepts and structures which will allow us to meet our needs and
enjoy our rights, and even more than that, which will secure the survival
of our peoples and cultures.

In the post-colonial
world, there has been a significant shift away from arrangements where
particular colonial powers had political authority over a number of distant
territories. As decolonisation occurs, new nations and political structures
are being formed in former colonies. The United Nations has taken an active
role in ensuring that the process of decolonisation occurs smoothly, and
that new states receive adequate support. Similarly, the breakdown of
the former Soviet Union and other states is resulting in the emergence
of independent states.

However, it would
be a mistake to see this as an unproblematic move towards the recognition
and fulfillment of the rights of peoples, or a move away from domination
and oppression. Indigenous peoples throughout the world today watch as
control over the lands which were originally ours, and which we still
consider to be ours, passes from one imposed political order to another,
just as we did with the formation of the Commonwealth of Australia, the
United States of America, Canada, and the nations states of South America.
The apparent process of change may involve a transfer of power and a reorganisation
of the social and political order, however, that transfer is almost always
from one non-Indigenous power (the primary coloniser) to another non-Indigenous
power (the neo-coloniser). Indigenous peoples as peoples remain disenfranchised,
and largely excluded from the political processes.

The Australian
Nation? Exclusion and the dominant politic

As politicians moot
Australia becoming a republic, and debate the rearrangement of political
structures, Aboriginal and Torres Strait Islander people insist that the
reorganisation of this society must not just be a matter of working out
how to rearrange the pieces on the board to construct `the most desirable'
Australian nation. We question the board, and the basic rules of the game
themselves.

Inherent to the concept
of citizenship is the concept of allegiance to a nation. As Aboriginal
and Torres Strait Islander people continue to contest the foundations
of the Australian nation as one which excludes and fails to recognise
the pre-existing social and political orders of Aboriginal and Torres
Strait Islander peoples, we cannot simply enter a debate about citizenship
as if the nation itself is a given fact.

Therefore, in this
paper, when I refer to political and legal systems, I do not use the terms
`the Australian political system' or `the Australian legal system', but
rather refer to the dominant political and legal systems. This
marks a recognition of alternative systems which operate, but which do
not have formal recognition within the dominant discourse.

Aboriginal and Torres
Strait Islander people assert, and will continue to assert, that Indigenous
political and legal systems exist and function, and that they should and
must be recognised as having a place in the basic structures underlying
the mainstream society, or parallel societies.

In saying this, I
am aware that various sub-groups within the broader society, be they women,
members of certain ethnic communities, or people of a particular religion,
could make claims to having systems which operate in parallel with the
dominant system, but which are different and are not formally recognised.
However, there are strong legal, moral and pragmatic cases for providing
formal recognition for Aboriginal and Torres Strait Islander systems and
structures which distinguish them from those of any other group in this
country.

The prior rights
of Indigenous peoples

The Indigenous peoples
of this country have consistently maintained that Aboriginal and Torres
Strait Islander societies, and indeed nations, existed in 1788. These
societies entailed the various characteristics which you would associate
with an organised community, that is a political organisation, a legal
system, a system of land holding, a system for caring for all members
of the society (a welfare system), education, healthcare, and protocols
for dealing with other nations (foreign affairs).

Non-Aboriginal invaders
in 1788 refused to acknowledge the existence of such societies and their
multi-leveled and complex systems, and accordingly imposed another political
order, which was eventually to become the `Commonwealth of Australia'.
The law of the early colonies was imported from England, and has gradually
developed as a body of Australian common and statutory law. However, in
none of these cases did it attempt to accommodate, let alone recognise
the integrity of pre-existing law or political organisation.

The significant point
in terms of the relationship between Indigenous and non-Indigenous peoples
is that the very foundations of the current accepted Australian legal,
political and social systems were based on the total denial of pre-existing
structures. This point cannot be made strongly enough. In order to assert
this, one does not even have to look to modern notions of international
law, nor to some higher ethic of just relations between peoples. The English
colonial legal system itself, in order to impose sovereignty in the way
it did, that is providing no recognition of pre-existing structures and
rights, had to deny the existence of such structures. This is precisely
what it did.

This resulted in
layers and layers of development of a society, and eventually a federated
nation which continued to deny the existence of what was already there,
and to overlay a whole new set of concepts, institutions, rules and mechanisms
for administering the society.

This point is all
the more fundamental to any contemporary discussion of citizenship and
Indigenous peoples because the conflict between systems, and the failure
to provide recognition, is not just a matter of past history. Despite
two hundred years of non-recognition and attempted eradication, Indigenous
systems continue to exist. As Aboriginal and Torres Strait Islander peoples,
our primary citizenship, if that term is to be used, belongs with our
Indigenous societies.

There is a general
assumption that the inhabitants of this country have at some time willingly,
albeit implicitly, accepted the Australian state and given it the power
to govern them and administer the institutions which regulate their lives.
In the case of Aboriginal and Torres Strait Islander peoples, this is
not true.

If Aboriginal and
Torres Strait Islander people are to become citizens of Australia, not
just in the eyes of non-Aboriginal Australia, but in terms of our allegiance
and active participation, the Australian Nation must find a way of accommodating
the political, social and cultural position and rights of Aboriginal and
Torres Strait Islander people as the first peoples of this country.

And so I come back
to my initial questions: when you raise the issue of citizenship, which
society and which political system are you talking about?

The relevance
of the High Court decision on Native Title

The specific issue
of land titles can be used to illustrate the dynamics of the relationship
between Aboriginal and Torres Strait Islander peoples, and the dominant
legal and political systems. This dynamic is evident at various other
levels, for example the recognition or non-recognition of Indigenous laws
pertaining to hunting, marriage and criminal behaviour, Indigenous forms
of education, the delivery of goods and services and so on.

The term 'Native
Title' was used by the High Court to signify the particular type of holding
which Aboriginal and Torres Strait Islander peoples have over our lands.
Prior to the 1992 High Court decision, it did not exist in the eyes of
the law. However, since the High Court decision, the existence of Aboriginal
land holding and social organisation in 1788, and its continued existence
(albeit in a sparser form) in the present, have received formal recognition
within the non-Aboriginal legal system. We now have a situation where
the common law recognises generically different systems. It does
not only recognise different levels of one system (such as leasehold or
freehold title), it allows for the existence of a different dimension
altogether.

Furthermore, the
decision recognised that Native Title could only be defined by reference
to the Indigenous traditional law which is the source of its validity.
At the same time Native Title gives rise to rights, valid and enforceable
within the common law system. Native Title has two distinct sources of
validity. But its fundamental, original source, is Indigenous traditional
law. This is a significant, albeit long overdue, change in the place which
Indigenous peoples and Indigenous societies have in the dominant Australian
legal and political system.

It is little wonder
that there has been such turmoil since the decision, because the selective
blindness which began in 1788 has begun to see some light. And even more
than that, to see some different colours.

However, the Government
has decided that it will be necessary to translate the decision from the
common law into legislation, and to pass legislation which will spell
out the nature and extent of native title, how it is to operate, and the
rights which adhere to it. Consequently, the direction which the Government
will take will have an enormous impact on the rights and status of Aboriginal
and Torres Strait Islander people, and will indicate how far it is prepared
to support our rights as distinct peoples. It is extremely unfortunate
that despite the positive rhetoric from some Government leaders, it appears
that when it has come to spelling out so called commitment into concrete
action, we are witnessing blatantly racist proposals which once again
assimilate the rights of Aboriginal and Torres Strait Islander peoples
at the bottom of the hierarchy.

The need for formal
recognition of Indigenous structures

Applying the example
of land holding more generally, there exists a situation where different
living and functioning systems exist, but only one has formal recognition,
or credibility if you like. You could then ask: Why can't they run together
without formal acknowledgment? Why can't you just say, "well these
other systems also exists, and they are the ones which in a practical
sense regulate a large part of our lives, so it doesn't matter how they
are represented in name."

Unfortunately, it
has been the consistent experience of Aboriginal and Torres Strait Islander
people that this has not happened in this country since 1788.

The primary reason
for this failure to allow the continuous operation of informal or parallel
systems is competition over resources. Land holding and land use are the
clearest and most basic examples. It is very difficult to have two systems
regulating one piece of land where they would make very different uses
of the land, or where the profits derived from the land would be distributed
in different ways. And as non-Aboriginal people find uses for land in
more and more parts of this country, the areas which are not coveted by
someone for profit are rapidly diminishing.

A second and related
reason is the desire to assert power and control. Not just in Australia,
but throughout the world, non-Indigenous peoples have gone into other
countries and insisted that the peoples living there be converted to their
ways of life, be that in the context of religion, education, health care,
housing or morality. Even where Aboriginal and Torres Strait Islander
people wanted to `get on with our own lives' and live according to our
own ways, we have not been permitted to, because other people decided
that it would be best for them to be converted and assimilated into other
systems. And this applies even where we were in a remote area which non-Aboriginal
people did not see as materially profitable.

Today we have a situation
where Aboriginal and Torres Strait Islander people have been forced to
come to the conclusion that we cannot live on our own country without
working out a way of receiving recognition and guaranteed respect for
our autonomous systems and our politic from the non-Aboriginal system.

To return to the
theme of Aboriginal people and citizenship, the first conclusion to be
drawn from the above is that fundamentally, `citizenship' as such is pretty
much besides the point, or `after the fact'. Citizenship, as a distinct
issue, cannot be resolved until the more fundamental questions about the
principles underlying the most basic social and political structures operating
in Australia are fully dealt with. It is possible, and it has been proven
to be the case that Aboriginal and Torres Strait Islander people can be
exploited, oppressed and excluded with or without citizenship.

The rights of
Aboriginal and Torres Strait Islander peoples

To move to the question
of the rights which Aboriginal and Torres Strait Islander people require
as citizens of a just society, three core issues require examination:
the principle of non-discrimination; the principle of distinct status;
and group as distinct from individual rights.

(i) Discrimination
before and after 1967

(please note that
this section relies on the understanding of many Indigenous people that
the 1967 Referendum resulted in the granting of citizenship rights to
Aboriginal and Torres Strait Islander peoples - for further discussion
see Chapter 2 of the Fifth Report)

One of the central
conditions for full participation as citizens is the full implementation
of the principle of non-discrimination. Non-discrimination in this context
means not depriving Aboriginal and Torres Strait Islander people of the
basic rights which belong to all people legally resident in this country.

Prior to the attainment
of citizenship for Aboriginal people in 1967 that principle was pretty
thin on the ground. To give a sample of the many examples, that meant
that we could generally not obtain a passport, we could not travel between
imposed states borders (regardless of where the borders for our country
lay), we did not have access to society's basic institutions, we could
not purchase alcohol, and we could not participate in the political life
of the country. We were not even counted in the census of the people of
this country.

Since citizenship
was conferred on Aboriginal and Torres Strait Islander people, at least
in a formal sense, many of the barriers to participation were lifted.
However, blatantly discriminatory legislation still existed for some time
in many states 1, and it is unfortunate to have to observe that
legislation still exists which is indirectly discriminatory, that is,
it has a disproportionate impact on Aboriginal and Torres Strait Islander
people 2.

Despite the fact
that Australia ratified the International Convention on the Elimination
of All Forms of Racial Discrimination in 1975, and passed federal
legislation making racial discrimination in all areas of public life unlawful
in the same year, as Aboriginal and Torres Strait Islander people we continue
to suffer the effects of racial discrimination in virtually all areas
of our lives.

However, what citizenship
provided was a ticket of entry into the political system. Unfortunately,
in practice it was a concession ticket which only gave us entry to the
back stalls and to some of the shows. Nevertheless, it must be acknowledged
that without the capacity for inclusion, albeit in a limited form, invidious
and direct discrimination against Aboriginal and Torres Strait Islander
people was entrenched at a Constitutional level.

Thus the "granting"
of citizenship offered an opportunity for Aboriginal and Torres Strait
Islander peoples to have a voice, and to move from a situation of being
totally controlled by external regulations, to one where we could also
have some control over the decisions which affected our lives.

Citizenship also
offered an opportunity for the full implementation of the principle of
non-discrimination. However, formal equality, if rigidly interpreted can
be, to quote Justice Brennan, "an engine of oppression destructive
of human dignity if the law entrenches inequalities `in the political,
economic, social and cultural or any other field of public life".
3

(ii) The principle
of difference

It is at this point
that the second principle, that of 'difference' comes into play. From
the point of view of the dominant non-Aboriginal society, Aboriginal and
Torres Strait Islander people's being given citizenship meant that we
would be allowed to assimilate into the wider society and be just like
everyone else. No worse, no better, no different.

For Aboriginal and
Torres Strait Islander people, if citizenship is to offer an opportunity
for attainment of our aspirations, it must mean something else altogether.
It must mean getting a foothold in one system so that we can get recognition
for different systems and different sets of rules and protocols. That
spells out to the ability to control and administer social and legal institutions
which will operate according to our belief systems, aspirations and needs,
as we know them to be and as we define them.

To return to the
High Court decision on native title; its potential power lies in the fact
that, to some extent, it provided recognition, inclusion and equality
while retaining and asserting difference. Or at the least, it provided
an opportunity for that to be achieved.

Thus, prior to 1967
Aboriginal and Torres Strait Islander people had a legally and politically
distinct status, but our differential treatment was clearly worse than
that of any other group of people in this country. Since 1967 the official
policy has generally been that Aboriginal and Torres Strait Islander people
have the same political and legal status as all other Australians, and
as such must be subject to the same treatment. 4 Where we
do not receive the same treatment, again, then by virtually any criteria,
the difference generally puts us in a clearly inferior position.

What we are trying
to communicate to non-Aboriginal Australia is that we do not want to be
treated as the same (because we are not), and we do not want to be treated
as inferiors. Distinctive need not equal disadvantaged or privileged.
Difference is not the equivalent to hierarchy. We are no better,
no worse and different.

(ii) Group rights

The third concept
which requires elaboration is group rights. Its significance in the context
of a discussion about Aboriginal and Torres Strait Islander people and
citizenship is that citizenship, as it currently exists, adheres to individuals.
Accordingly, the rights accorded to citizens are individual rights. Within
the existing Constitution there is virtually no recognition of group rights.
As the most significant and unrecognised rights for which Aboriginal and
Torres Strait Islander peoples are seeking recognition concern our rights
as peoples, the achievement of these will require structural change in
the categories and articulation of rights guaranteed to citizens.

One of the key problems
for Indigenous peoples has been that up to the present, the attempts to
ensure the enjoyment of human rights, that is both international and domestic
human rights instruments focus virtually exclusively on individual rights.
This approach fails to achieve justice, even in a democratic society,
firstly because those belonging to a relatively powerless numerical minority
will not have sufficient weight to have their interests widely recognised,
and secondly because group rights are not reducible to individual rights.

In the landmark Case
concerning Minority Schools in Albania, the Permanent Court recognised
that if special group rights are not granted to particular groups to defend
their cultures, the practice of religion, and the use of their languages,
they will be treated unequally and unjustly. 5 Similarly, the Permanent
Court in the Minority Schools decision, and the European Court
in the Belgium Linguistics case 6 have recognised the limited
nature of conceiving rights in purely individual terms.

There are limited
provisions in international instruments which recognise group rights,
such as Article 1 of the International Covenant on Civil and Political
Rights, which concerns the right to self-determination, and Article
27 of the same Covenant which recognises that the individual's rights
may need to be exercised in community with other members of a minority
group (ie the rights of assembly and of association, and the enjoyment
of cultural, linguistic and religious rights). Where group rights are
mentioned, they are frequently poorly defined and open to a range of interpretations.
Where they have been interpreted as political rights, as in the case of
the right to self determination, the group for whom the right is guaranteed
has been interpreted as being synonymous with Nation State. 7 Where
indigenous people do not have separate nationhood, which is the almost
universally the case, we have not been seen as having this right.

The failure of European
systems of law to adequately recognise, or give weight to group rights
as they apply to minority groups, and in particular Indigenous peoples,
reflects the ethnocentrism which spans domestic and international human
rights law. It also reflects the fundamental failure of non-Indigenous
law makers, even when claiming to be establishing 'universal principles'
to understand the framework and priorities of Indigenous peoples.

However, it is not
merely ethnocentrism which prevents the recognition of group rights. Nation
states perceive the demand for recognition of group rights as a threat
to national integrity and stability. They fear that when a people seek
recognition of their rights as a people, the next step will be to challenge
the sovereignty of the state or propose secession. As I will argue below,
while this should always be retained as an option, self determination
must today be interpreted as having a broader application.

Nevertheless, to
the extent that such threats have any reality, it would perhaps be a valuable
for states (or Governments) to ask themselves the question of why, if
they are validly representing the interest of the people of their constituency,
sections of the population feel the need to consider such radical action.

I would suggest that
in order to answer this question, States should be examining their human
rights standards in relation to those sections of the population. Conflict
does not arise where rights and fundamental freedoms are guaranteed. Conflict
arises from the denial of freedom and rights. People who are not free
will always fight for that freedom.

Should states see
national integrity as in their interest, it would seem that it would also
be in their interest to guarantee and protect group rights of minority
groups within their jurisdiction.

For Aboriginal and
Torres Strait Islander people, the right to exercise and enjoy group rights
will be an essential aspect of our citizenship. If the Australian Government,
whether it be a Commonwealth Government or a Republic is to have any credibility
in its claim to represent the population of this country, and that is
to include Aboriginal and Torres Strait Islander people, then recognition
of the right to self determination, and other group rights will have to
be an integral part of its Constitutional and legal framework.

A society of peoples?;
Working out just terms

Recognising the issues
raised by these three concepts, the major challenge facing this country,
and in fact countries all over the world, is how to support, within one
geographic area or one political entity, different peoples, and their
different interests and institutions.

Several strategies
have been considered. One is to separate out altogether; to divide people
into entirely distinct political entities where they will govern and be
governed according to a set of tenets which derive from their defined
community principles. In the case of Aboriginal and Torres Strait Islander
peoples, this would presumably amount to secession and the formation of
a separate sovereign nation or nations.

This approach raises
a number of difficulties. Where there are territory and resources over
which more than one group claims it has rights, there will always be disputes
about how to divide them. If groups fragment into small independent states
with few resources, not only may it be difficult for them to support themselves
internally, but in terms of the international community, on which we are
all highly dependent in today's world, they may very well lack the power
to assert their needs and bargain to have them met.

Another strategy
is to establish a 'majority ground' which supposedly represents the position
and interests of the numerical majority. This may possibly include trying
to find ways of accommodating needs of minority groups (in the numerical
sense). However, where this occurs, it generally happens as an adjunct
which operates at the fringe rather than as a central part of political
and institutional structures. This strategy will never be satisfactory
for people who are a numerical minority or relatively powerless, because
the recognition of their rights and different needs is always going to
be considered a peripheral benefit, and the first thing to be cut when
the budget gets tight or there are additional demands on the system.

What we need to find
is a way of procuring the benefits of being a relatively large group occupying
a very large territory, while fully recognising and supporting different
groups on the political, social and cultural dimensions. This may mean
the formation of a socio-political structure which is equivalent to some
type of co-operative with enough cohesion to facilitate communication
between different sections and to share certain institutions and resources
where appropriate, but to nevertheless retain and ensure the recognition
of the human rights of specific groups, and in particular Indigenous peoples.

In considering how
to work this dilemma out, we are now having to go beyond traditional concepts,
and stretch the way that we think about citizenship and political participation.
Up to the present time, there has been a broad assumption that the political
entity of the nation state 'Australia' actually coincides with the theoretical
'one people' of Australia; that a person's citizenship corresponds to
a nationality which is defined by the territory in which they live. 8

It has also been
assumed that there is a coincidence between culture, geography, 'people'
and a political organisation, and that for each nation there is a corresponding
sovereign state where ultimate authority vested in one set of institutions.
It is timely for us to question these arrangements, and to ask whether
they necessarily achieve the most just societies. One can now ask specifically,
whether the physical borders drawn around this country and the corresponding
sovereign state are those which will achieve the greatest justice for
all peoples within those borders.

Emerging in the modern
world is a growing recognition of the importance of cross national relations
and global cultures. This is not altogether a new phenomenon, as evidenced
by the longstanding influence of religious institutions which have for
centuries spanned continents. Similarly, trans-national corporations have
had an escalating power for some time. However, we are now witnessing
the emergence of international networks of a different type. Networks
are forming in particular in the field of human rights and between groups
of peoples in different countries, each of whom are relatively powerless
within their own territory.

In the case of Indigenous
peoples, Indigenous communities in countries across the world are finding
that we share experiences, problems, aspirations and needs. In fact we
are discovering that in many ways we have more in common with each other
than with the people who are officially classified as the same nationality.
Our existing dominant legal and political systems, including the international
system, are very much state based. The United Nations General Assembly
passed a resolution that:

all States uphold
the obligation to enforce the Charter of the United Nations and the
Universal Declaration of Human Rights and this Declaration, on the basis
of equality, non-interference with the internal affairs of all State
and respect for sovereign rights of all peoples and their territorial
integrity. 9

Despite the fact
that this resolution seeks to protect the sovereign rights of peoples,
and the fact that there is no legal or generally accepted political definition
of 'peoples', statist international law has insisted on a narrow definition
of 'people' as being synonymous with the state. The only exceptions to
this have been peoples classed as dependent or subjected to 'alien subjugation,
domination and exploitation'. 10

Indigenous peoples
are unquestionably distinct peoples according to the various social, cultural
and ethnological meanings of the term (meeting all the criteria in terms
of distinct language, law, values and traditions, histories and economic,
religious and spiritual relationship with the territories in which we
have lived), and we would argue that we should also fall within the category
of a people subjected to 'alien subjugation, domination and exploitation'.
However, Indigenous peoples have not been recognised as having the rights
which are guaranteed to peoples, and in this sense we have been formally
excluded from the definition of peoples.

The most important
effect of this narrow interpretation is that it has resulted in the formal
exclusion of Indigenous people from the right to self determination, which
as discussed above is guaranteed by international instruments as a right
to all peoples. This politically motivated interpretation of the term
is totally unacceptable to Indigenous people, for whom this right is a
prerequisite to the enjoyment of all other human rights and fundamental
freedoms. 11

Self determination
in international law has been defined as the right of peoples to "freely
determine their political status and freely pursue their economic, social
and cultural development". While the concept of self-determination
is too vast a topic to explore in depth in the present context, Aboriginal
and Torres Strait Islander people are in the process of exploring various
options for exercising self-determination, ranging from complete independence,
co-operative arrangements as part of a federation, limited autonomy, regional
autonomy, self government, self management, or other arrangements to be
worked out by communities.

The dominant political
and legal system in this country must recognise Aboriginal and Torres
Strait Islander peoples as peoples, and as such as validly having the
right to self determination. The exclusion of peoples who do not constitute
a nation state goes beyond the right to self determination. Virtually
all dealings within the United Nations must take place between recognised
states or individuals. There is almost no capacity to make a claim of
a breach of your group rights, or to receive recognition or redress as
a people, unless that people coincides with a nation.

The principle of
national integrity laid down in the Charter of the United Nations preserves
the power of the nation state to manage all affairs within its own borders,
including those of all peoples within those borders, except where the
international community deems it a matter of international peace and security.
12

The United Nations
Charter relies on nation states to manage the needs of all peoples within
their borders, including minorities. Recognising that it cannot be assumed
that this will occur in a just manner in all countries, the international
community has attempted to protect the rights of minority groups by establishing
principles for individual rights (in the form of human rights instruments)
with which nation states would agree to comply.

However, this has
not led to satisfactory results for minority groups, and in particular
indigenous peoples. Hence, we find it necessary to go beyond the boundaries
of the nation state, and demand that the international community in the
first instance recognise the importance of promoting and protecting group
rights, with a view to those rights also being recognised by nation states.

Setting just standards

In view of the inadequacies
of the current international and national systems to provide adequate
recognition or protection of the rights of Indigenous peoples, the Working
Group on Indigenous Populations was set up by the United Nations Sub-Commission
on the Prevention of Discrimination and Protection of Minorities. Since
1982 it has been working towards the evolution of standards concerning
the rights of Indigenous peoples, which will form the draft Declaration
on the Rights of Indigenous Populations.

One of the key issues
addressed by the Working Group has been the right to self determination
and the meaning of `peoples'. In the eleven years since the inception
of the Working Group, Indigenous representatives, including representatives
of Aboriginal and Torres Strait Islander peoples, have been arguing to
the Working Group that the right to self determination, in its fullest
meaning, must extend to Indigenous peoples. In July of this year, during
its eleventh session, the Working Group unanimously agreed that the Draft
Declaration should include the right to self determination, and that the
wording should be the same as that in the United Nations Charter, the
Universal Declaration of Human Rights, and the two Covenants (the International
Covenant on Civil and Political Rights and the International Covenant
on Social, Economic and Cultural Rights). This means that, if the Draft
Declaration is adopted, the International Law will for the first time
recognise the right to self determination as applying to Indigenous peoples,
without qualification.

In doing this, it
has been recognised that self determination must include more options
than secession, and must embrace options where Indigenous peoples would
retain distinct status while remaining part of an existing state.

The principles which
would inform the way non-secessionist forms of self-determination are
realised would include the right of Indigenous peoples to freely negotiate
our status and representation within the state, our right to preserve
and promote our unique values and cultures, and the duty of the state
to accommodate the aspirations of Indigenous peoples through Constitutional
reforms which will ensure the genuine sharing of power. It is hoped that
the Draft Declaration will promote the different forms of self-determination,
and act as a basis for Indigenous peoples within nation states to fully
enjoy the right to self determination. However, the right to secede must
remain an option.

While setting internationally
accepted human rights standards for the rights of Indigenous peoples,
including our group rights, will be crucial in achieving full recognition
of those rights, it will ultimately be states which will have to implement
them if Indigenous people are going to have our rights recognised in practice,
while remaining part of those states. Given the past record of nation
states in ensuring the recognition of these rights, it is a wise move
on the part of Indigenous peoples to be exploring all options of
how we may relate to existing states in the future.

To the extent which
`citizenship' within states is going to be a mechanism for achieving the
full enjoyment of the human rights of Indigenous peoples, it will have
to allow for the relative autonomy of peoples, and full protection of
the rights which will be articulated in the Draft Declaration. We believe
that a new form of arrangement, one which is not based on national identity
as we presently define it, will be necessary to achieve the full and just
representation of different interests and needs which Indigenous peoples
are currently seeking.

Who should be
seeking citizenship?

I would like to conclude
with a different perspective on the notion of citizenship and Aboriginal
and Torres Strait Islander peoples. I began by asking the questions: "citizenship
within which society?"; and, "recognition by which political
system?." This subject is almost always approached today from the
perspective of whether Aboriginal and Torres Strait Islander people should
be Australian citizens, and if so, what citizenship should involve. It
strikes us as somewhat of an irony that when non-Aboriginal people came
to this country in 1788, they did not ask the same questions of themselves
in relation to Aboriginal or Torres Strait Islander nations. They never
applied for citizenship within our societies. They never considered what
rights and obligations were associated with being a citizen within Indigenous
nations, and they certainly never attempted to respect those rights or
obligations.

I would suggest that
these questions are still relevant today, and that as well as exploring
the issue of Aboriginal and Torres Strait Islander people and Australian
citizenship, you also consider the issue of non-Aboriginal people and
their citizenship within the Indigenous nations of this country.

Reference notes

1.
For example, it was not till the mid 1970s that Western Australia repealed
legislation which made it an offence for Aboriginal people to cross a
State border, or to be assisted in so doing.

2.
For example of the Summary Offences Act (NSW), the continuation
of the criminalization of public drunkenness in Victoria, the 'Two Kilometre
Law' in the NT (which makes it unlawful for a person to drink in a public
place within two kilometres of licensed premises), have all been shown
to have a disproportional effect on Aboriginal people, and to lead to
Aboriginal people in particular being charged and imprisoned more often
for relatively minor offences.

3. Brennan,
J, Gehardy v Brown, (1985) 57 ALR 472, 516

4. As discussed
above, this principle was made law by the Racial Discrimination Act.

5. PCIJ Ser
A/B No 64 (1935) 18.

6. ECHR Ser
A vol. 6 (1968)

7. The issue
of the right to self determination and the meaning of a `people' is discussed
further below.

8. The concept
of Nationality has been explored in considerable detail elsewhere, for
example E Kamenka (ed), Nationalism: The Nature and Evolution of an
Idea (London, 1976).

9. United
Nations General Assembly Resolution 1514, para 7

10. See Erica-Irene
A Daes, Chairperson of the Working Group on Indigenous Populations, Discrimination
Against Indigenous Peoples, Explanatory note concerning the Draft
Declaration on the Rights of Indigenous Peoples, Item 14, 45th Session
of the Sub-Commission on the Prevention of Discrimination and the Protection
of Minorities, 1993.

11. As Nettheim
asserts: "International law ought to be sufficient in principle to
meet the autonomy claims of indigenous peoples.....After all the right
to self determination is promised to all peoples'. Why should one particular
set of peoples - a particular sub-category of indigenous peoples - be
denied any of the options that international law permits merely because
one of those options may not be available?" (Nettheim, Garth, 'Peoples'
and 'Populations': Indigenous Peoples and the Rights of Peoples in
Crawford, J., The Rights of Peoples (1988), p. 120.

12. For a
fuller exploration of the principles of national integrity and non-interference,
see the Charter of the United Nations, Article 2 and Chapter 7.

Last
updated 1 December 2001