Interdisciplinary Workshop: Archives and Indigenous Human
Rights: Towards an understanding of the archival and recordkeeping implications
of Australian and international human rights for Indigenous
Australians

Mick Gooda

Aboriginal and Torres Strait Islander
Social Justice Commissioner

12 October 2010

Rydges
Hotel

Melbourne

---

I would like to begin by acknowledging the Wurundjeri people of the Kulin
nation, the traditional owners of the land where we meet today, and pay my
respects to their elders, both past and present.

I am of the Gangulu from the Dawson Valley in Central Queensland and when I
speak to my Elders, they ask me to pass on my salutations to the traditional
owners of the land I visit for their continued fight for their country and their
culture.

It is a pleasure to be here today participating in this workshop focusing on
the important area of archiving and its impacts on the realisation of Indigenous
peoples human rights.

1 Background

I began my 5-year term as Aboriginal and Torres Strait Islander Social
Justice Commissioner in February this year.

My position is one of six within the Australian Human Rights Commission. We
are the peak human rights body in Australia.

As Social Justice Commissioner, I report to Parliament once a year with my Social Justice Report which addresses the human rights of Aboriginal and
Torres Strait Islander peoples. I also provide a Native Title Report which looks at native title and issues associated with lands and resources. I
also:

• review the impact of laws and policies on Indigenous peoples
• promote an Indigenous perspective on issues
• monitor the enjoyment and exercise of human rights for Indigenous
  Australians.

From a personal perspective, I have worked in
Indigenous affairs for all of my professional life and when I was first
approached about this position as Commissioner, I was initially hesitant because
I didn’t see myself as a human rights activist. But as one of my closest
colleagues pointed out, you can’t work in Indigenous affairs without being
a human rights activist. If you work in this area, you are working with human
rights day in and day out.

All the issues being dealt with in Indigenous affairs; effective engagement,
poverty, education, health, protection of culture and languages, incarceration
rates, protection of women and children, all of these issues are human rights
issues.

2 Archiving and human rights

The field of archiving and record keeping, like these other areas, also has
significant human rights implications for Indigenous peoples. Some of which we
have already discussed today.

One of the by-products of colonisation has been the appropriation of
Aboriginal and Torres Strait Islander cultures, voices and decision-making
powers. This appropriation has characterised us as mere passive subjects in a
world going on around us.

Under conventional practices in archiving and record keeping,
‘subjects’ of a record are similarly passive, with no ownership in
the record.^[1] Ownership and therefore
control resides in the creator and the rights of those captured in records are
limited. For example, in a video capturing a ceremonial dance the interests of
the recorder will be protected but not the
dancers.^[2]

This has significant implications for Aboriginal and Torres Strait Islander
peoples, our culture and knowledge is tied into dances, songs and stories yet we
find it difficult to exert control over records that capture these important
forms of cultural expression.

This is magnified by the historical fact that we have been intensively
observed, recorded, measured and categorised since colonisation. This has had
painful impacts; Aboriginal activist Kevin Gilbert argues:

The real horror story of Aboriginal Australia today is locked in police files
and child welfare reports. It is a story of private misery and degradation,
caused by a complex chain of historical circumstance, that continues into the
present.^[3]

Due to historical reasons, and the nature of our cultures, much Indigenous
cultural knowledge and property is now contained in library and archival
records.

Laws and practices to protect these records, for example through intellectual
property regimes, are informed by Western thought and legal traditions. This has
impeded our peoples ready access to these records and repositories of culture
and denied our structures of ownership, control and regulation.

In their seminal work, Nakata and Langton suggest a challenge for record
keepers and archivists is balancing these competing knowledge systems:

More fundamentally it must be about a recognition of and respect for
continuing but still distinct knowledge traditions. It must be about developing
a set of practices that recognise the entanglement of the two traditions as they
move forward together in a somewhat problematic tension... It must be about the
authority of Indigenous people to determine how and under what conditions they
want to manage their knowledge and cultural materials... At every level it must
be about developing trust and good working relations between Indigenous people
and collecting institutions.^[4]

I suggest that human rights standards can provide significant guidance and
impetus to bring about reform.

3 The Declaration on the Rights of Indigenous
Peoples

The standards contained in the United Nations Declaration on the Rights of
Indigenous Peoples (Declaration) can provide a pathway for law and policy
reform in all spheres that impact upon Indigenous peoples, including archiving.
As the Social Justice Commissioner, it will be the overarching framework that
informs my agenda.

A useful way to look at the Declaration is to view it as a quality assurance
mechanism. If laws, policies, programs or protocols are consistent with the
standards contained within it, then are likely to result in positive outcomes.

The use of the Declaration to guide reform is being increasingly recognised.
Professor James Anaya, the Special Rapporteur on the rights of indigenous
peoples (for those that don’t know, a Special Rapporteur is United Nations
speak for an independent expert), officially visited Australia in August last
year. He presented his report of that visit at last month’s
15^th session of the Human Rights Council. In that report he made the
following key recommendation:

The Commonwealth and state governments should review all legislation,
policies and programmes that affect Aboriginal and Torres Strait Islanders, in
light of the Declaration on the Rights of Indigenous
Peoples.^[5]

The Declaration took over 20 years to develop – it was drafted by
governments and indigenous peoples across the globe. This process of drafting
and negotiating is an example of the common ground shared between nation-states
and indigenous peoples.

As a consequence, the Declaration is informed by the world views of
indigenous peoples, and describes how existing human rights standards apply to
the specific circumstances of indigenous peoples.

The Declaration was adopted by the General Assembly of the United Nations on
13 September 2007. Only four countries, including Australia, voted against it.
However, on 3 April 2009, the Australian Government changed its position and
formally supported the Declaration.

Article 43 is a key provision in the Declaration, it states:

The rights recognized herein constitute the minimum standards for the
survival, dignity and well-being of the indigenous peoples of the world.

It is easy to miss the significance of this statement. However, when it is
remembered that the Declaration was overwhelmingly adopted in the General
Assembly of the United Nations, its importance becomes clear. The General
Assembly is the home of nation-states and their governments, not of academics,
nor of human rights experts. So it was the governments of the world who stood up
together and proclaimed these rights are a road map, not only for more equitable
outcomes for indigenous peoples, but for their very ‘survival, dignity and
well-being’.

4 A road map for archivists

Using the Declaration as the road map, I will now outline a few key
principles that can inform the development of future archival and record keeping
protocols and practices.

4.1 Self-determination

The right to self-determination is a right for all peoples. It is recognised
in both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The same
right of self-determination is contained in Article 3 of the Declaration.

Professor Erica-Irene Daes, a Former Chair of the United Nations Working
Group on Indigenous Populations spoke of what the right to
self-determination means for Indigenous peoples:

[s]elf-determination means the freedom for indigenous peoples to live well,
to live according to their own values and beliefs, and to be respected by their
non-indigenous neighbours...



[Indigenous peoples'] goal has been
achieving the freedom to live well and humanly - and to determine what it means
to live humanly.^[6]

The Social Justice Report 2002 also examined the right to
self-determination for indigenous peoples. It identified several factors
essential to the realisation of this right, these included:

• Respect for distinct cultural values and diversity.
• Choice, participation and control is essential.
• A notion of popular participation is inherent to self-determination.
• The existence in democratic societies of structural and procedural barriers
  which inhibit the full participation of indigenous peoples must be recognised.
  The nature of participation and representativeness required by
  self-determination necessitates going beyond such sameness of treatment and to
  strive for institutional
  innovation.^[7]

These
definitions highlight that the right to self-determination for indigenous
peoples is about guaranteeing full, free and effective participation in all
aspects of public
life.^[8]

4.2 Participation in decision-making

This participation is a critical step required to achieve a significant
improvement in the lives of Indigenous peoples. Governments and service
providers, including archivists, need to recognise, endorse, and treat
Aboriginal and Torres Strait Islander people as substantive players and major
stakeholders in the development, design, implementation, monitoring and
evaluation of all policies, programs and legislation that impacts on us.

Former Secretary of the Department of Prime Minister and Cabinet Peter
Shergold last year wrote about need for government to better engage with people.
He argued:

... the politics of participation is complex but not fatal.

Rather, the problem is a lack of imagination, insufficient courage and too
great an abundance of caution. Too many good things have happened in the
delivery of government services only for their beneficial potential to be
undermined by a failure of political nerve or bureaucratic
inflexibility.^[9]

Finding ways of increasing participation, in archiving and record keeping,
just as for the delivery of government services, is difficult, but it is not
impossible. This difficulty should not deter us from achieving this important
outcome.

4.3 Free, prior and informed consent

The Declaration elaborates on a process of participation with reference to
the principle of free, prior and informed
consent.^[10]

Free, prior and informed consent recognises indigenous peoples’
inherent and existing rights and respects our legitimate authority to require
that third parties enter into an equal and respectful relationship with us,
based on the notion of ‘informed consent’.

When applying the
principle of free, prior, and informed consent the following criteria should be
met:

• that there be no coercion or manipulation used to gain consent
• consent by governments or third parties must be sought well in advance of
  commencing an activity or implementing legislation that affects the rights of
  Indigenous peoples
• full and legally accurate disclosure of information relating to the proposal
  must be provided in a form that is understandable and accessible for communities
  and affected peoples
• communities and affected peoples have meaningful participation in all
  aspects of assessment, planning, implementation, monitoring and closure of a
  project
• communities and affected peoples are able to secure the services of
  advisers, including legal counsel of their choice and have adequate time to make
  decisions
• consent applies to changes to a proposal - this will renew the requirement
  for free, prior, and informed consent.

This principle is beginning
to gain traction in Australia and is increasingly being used in the development
of protocols and policies. The Desert Knowledge CRC Aboriginal Knowledge and
Intellectual Property Protocol, a protocol designed to ensure Aboriginal
knowledge is not exploited during research, is guided by free, prior and
informed consent. It has also been used in a mining policy developed by the
Goldfields Land and Sea
Council.^[11]

4.4 Resetting the relationships

The importance of re-setting relationships between indigenous peoples and
government and the broader community is a central theme in the Declaration. The
Declaration, through principles of self-determination and participation, is an
instrument that can be used to create the institutional structures, arrangements
and process needed for indigenous peoples to be able to effectively engage in
better relationships with third parties. Any doubt to this is made clear in the
preambular paragraph 18 of the Declaration which states the General Assembly
is:

Convinced that the recognition of the rights of indigenous peoples in this
Declaration will enhance the harmonious and cooperative relations between the
State and indigenous peoples.

Nakata and Langton pick up on the importance of relationships, meaningful
relationships in developing archiving and record keeping processes:

... innovations cannot occur unless there is good communication... This is a
circular process. It is not about simple consultation with Indigenous people,
although consultation must be part of the process. It is about dialogue,
conversation, education, and working through things together. It is not just
about developing the language to describe what needs to be done, but providing
the opportunity and means for Indigenous peoples to be part of what they
determine should be done.^[12]

This type of relationship re-setting could manifest itself in record keepers
working with local Aboriginal and Torres Strait Islander communities to
establish databases and knowledge management systems for cultural knowledge that
meet the needs and aspirations of those communities. Archivists here could
provide the technical expertise and help build community capacity to ensure that
cultural knowledge is not lost.

Another example could be working with Indigenous representative bodies to
reform the structural and environmental aspects of archiving institutions to
make them more accessible and welcoming for Indigenous
peoples.^[13]

It is the process of working together, in a negotiated space, which
recognises and celebrates our differences, that relationships are built. In this
regard, the process or the means is as important as the ends.

4.5 Culture

The recognition and celebration of difference leads me to the next key
principle, cultural rights. International human rights law, most clearly
elaborated on in the Declaration, has evolved to the point where indigenous
peoples have the right to maintain, practice and revitalise culture and
traditions. Our cultures are to be respected and
protected.^[14] These rights extend
to our ways of being and knowing, including our histories, oral traditions,
philosophies and languages.^[15] We
have the right to practice, develop and transmit our spiritual and religious
traditions and have access to cultural sites and ceremonial
objects.^[16] We also have rights to
cultural property and traditional
knowledge.^[17]

As I stated earlier, much our cultural knowledge, histories, traditions and
customs are now contained in library and archival records. By implication then,
we must address this information from a new angle. We must recognise the
fundamental importance of these records as repositories of culture to Indigenous
peoples.

We must examine innovative ways to effectively protect Indigenous ownership
cultural knowledge. Professor Mick Dodson, as part of his work for the UN
Permanent Forum on Indigenous Issues, has argued that Western legal regimes are
inadequate:

Attempting to alter intellectual property law so that it accommodates
traditional knowledge, knowledge that is completely different in essence, is
reminiscent of the proverb, “You can’t fit a round peg in a square
hole”. No matter how one tries, it just does not fit. It is for this
reason that a completely new and customized approach is
needed.^[18]

Legal protection of our cultural knowledge must account for our ways of
conceiving it and be sensitive to the importance and significance of this
knowledge to our peoples.

We must also look at the way we classify records that contain cultural
knowledge. Certain materials in archiving institutions are confidential in
nature and we, as Indigenous peoples have protocols attached to accessing it.
For example, some materials should be restricted to ‘initiated males
only’, or be ‘women’s business only’. These protocols
are not always respected. Research institutions should work with us to identify
these materials and then develop policies to ensure our access protocols are
adhered to.^[19]

5 Conclusion

I want to conclude by re-emphasising the importance of positioning Aboriginal
and Torres Strait Islander as substantive players in matters affecting them.

In my forthcoming Social Justice Report, I showcase the importance of
a community taking control of the social issues confronting them in the Fitzroy
Valley, in the Kimberley region of Western Australia. It is a story of an
Aboriginal community, who through strong local leadership, have become active
players in the future of their community and the transformation that has
occurred as a result. It is a story of a community facing its own issues, and
his is done by the community owning its own story. Community member June Oscar
has put it this way:

It is a story of colonisation; the threat of losing our cultural authority to
manage our societies; and the despair that has come from that disempowerment. It
is a story of grief and trauma and the continued pain of living with grog, drug
and violence.

It is a story that academics and journalists write about us as though we are
victims of history that we can do nothing about. And within their stories about
us is an acceptance that the paternal hand of government will determine the
nature of our welfare and even the nature of our rights.

... I want to tell a different story. It is about how Aboriginal people can
be the authors of our stories and not passive and powerless subjects in stories
told and written by others.^[20]

The role of governments and others, including archivists and record keepers,
is to position themselves to enable Aboriginal and Torres Strait Islander to
move themselves from passive and powerless subjects, to active participatory
agents.

I hope my insight assists in the pushing towards an archival and record
keeping system that facilitates the active participation of Aboriginal and
Torres Strait Islander peoples.

---

^[1] L Iacovino, ‘Rethinking
archival, ethical and legal frameworks for records of Indigenous Australian
communities: a participant relationship model of rights and
responsibilities’ (2010) Archival Science.

^[2] Australian Library and
Information Association, The Aboriginal and Torres Strait Islander Protocols
for Libraries, Archives and Information Services (2005). At http://www1.aiatsis.gov.au/atsilirn/protocols.atsilirn.asn.au/index6df0.html?option=com_content&task=blogcategory&id=0&Itemid=6 (viewed 29 September 2010).

^[3] K
Gilbert, Living Black (1977), p
2.

^[4] M Nakata and M Langton,
‘Introduction’ in M Nakata and M Langton (eds) Australian
Indigenous Knowledge and Libraries (2006) 3, p
4.

^[5] Human Rights Council, Report by the Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous people, James Anaya, Addendum: Situation of
indigenous peoples in Australia, UN Doc A/HRC/15/37Add.4 (2010), para 74. At http://unsr.jamesanaya.org/PDFs/Australia%20Report%20EN.pdf (viewed 1 September 2010).

^[6] E
Daes 'Striving for self-determination for Indigenous peoples' in Y Kly and D Kly
(eds), In pursuit of the right to self-determination (2000), p
58.

^[7] W Jonas, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Social Justice Report
2002, Human Rights and Equal Opportunity Commission (2002), p 28-30. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport02/chapter2.html (viewed 29 September 2010).

^[8] J
Anaya, Indigenous Peoples in International Law (2004).

^[9] P Shergold, ‘Been
there, done that, still hoping for more’ (2009) 24 Griffith REVIEW.
At http://www.griffithreview.com/edition-24-participation-society/222-essay/652.html (viewed 29 September 2010).

^[10] United Nations Declaration on the Rights of Indigenous Peoples, GA
Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), arts 10, 11, 19, 28, 29,
32. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed
29 September 2009).

^[11] Goldfields Land and Sea Council, Mining Policy: Our Land is Our
Future (2008). At http://www.glc.com.au/ (viewed 26 March 2010).

^[12] M Nakata and M Langton,
‘Introduction’ in M Nakata and M Langton (eds) Australian
Indigenous Knowledge and Libraries (2006) 3, p
4-5.

^[13] Australian Library and
Information Association, The Aboriginal and Torres Strait Islander Protocols
for Libraries, Archives and Information Services (2005). At http://www1.aiatsis.gov.au/atsilirn/protocols.atsilirn.asn.au/index6df0.html?option=com_content&task=blogcategory&id=0&Itemid=6 (viewed 29 September 2010).

^[14] United Nations Declaration on the Rights of Indigenous Peoples, GA
Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), arts 11 and 31. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 29 September 2009). See also Committee on the Economic, Social
and Cultural Rights, General Comment 21: The right of everyone to take part in
cultural life (2009). At http://www2.ohchr.org/english/bodies/cescr/docs/gc/E-C-12-GC-21.doc (viewed 29 September 2010).

^[15] United Nations Declaration on the Rights of Indigenous Peoples, GA
Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), art 13. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed
29 September 2009)

^[16] United Nations Declaration on the Rights of Indigenous Peoples, GA
Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), art 12. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed
29 September 2009).

^[17] United Nations Declaration on the Rights of Indigenous Peoples, GA
Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), art 31. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed
29 September 2009).

^[18] Permanent Forum on Indigenous Issues, Report of the Secretariat on Indigenous
traditional knowledge, UN Doc E/C.19/2007/10 (2007), para
21.

^[19] Protocols.

^[20] J Oscar, Speech to the
Western Australian Human Rights and Equal Opportunity Commission Forum,
(Speech delivered at the Western Australian Human Rights and Equal Opportunity
Commission Forum, 10 August 2009), p 1-2. At www.equalopportunity.wa.gov.au/pdf/June%20Oscar%20August%2010,%20WA%20Human%20Rights%20&%20Equal%20Opportunity%20Commission%20Forum.pdf (viewed 21 April 2010).