Social justice for Indigenous
peoples

Speech by Michael
Dodson, Aboriginal and Torres Strait Islander Social Justice Commissioner
at the Third David Unaipon Lecture, October 1993

Ladies and Gentlemen

It is a very great
honour for me to be invited to give this third lecture in commemoration
of the great Aboriginal mathematician and scientist, David Unaipon.

I speak with you
tonight in the spirit of the words set down by Indigenous people from
all parts of the earth when they met in Brazil in 1992 to create the Indigenous
People's Earth Charter:

We, the indigenous
peoples, walk to the future in the footprints of our ancestors.

I have chosen for
my topic the meaning of human rights and social justice for Aboriginal
and Torres Strait Islander peoples. Upon reflection, I realised how appropriate
it was to explore these issues in a lecture commemorating a great mathematician
and scientist.

The pursuit of human
rights, like the study of science, is the search for universal truths
which are beyond the fluctuations and fallibilities of particular contexts.
There is an ancient notion in most cultures that there exists a law which
is different, higher and more compelling than that found in edicts of
kings, chiefs, courts or governments; a law which has an absolute authority
which human made law can never claim.

For Indigenous people,
the appeal to universal human rights law offers a prospect of freeing
us from the oppression we have suffered. Because, since the invasion and
colonisation of our lands, we have been subjected to the discriminatory
laws of the self proclaimed sovereign nation which assumed authority over
us.

At the most basic
level, for Indigenous peoples, social justice means that our lives will
not be dominated by a foreign rule of law which fails to adequately support
or take into account our unique identities and aspirations. It means that
our voices will enter into a dialogue from which all peoples in a society
negotiate the type of society they live in.

It's remarkably timely
to be speaking about negotiation and social justice. This week, we finally
appear to have reached a provisional national settlement in relation to
native title, excepting the predictable bloody-mindedness of the Coalition
and Richard Court.

Certainly, it would
be absurd to assume that social justice now exists for Indigenous peoples,
or that we now fully enjoy our human rights. But what has happened is
that we have seen, perhaps for the first time in the history of this country
since 1788, genuine negotiations in which the rights of Indigenous peoples,
as articulated by Indigenous peoples, were given genuine respect
and weight.

I'll return to discuss
the issue of native title, but to begin with, I'd like to look more broadly
at the concepts of human rights and social justice as they relate to Indigenous
peoples.

As the first Aboriginal
and Torres Strait Islander Social Justice Commissioner within the Human
Rights and Equal Opportunity Commission, the meaning and nature of human
rights and social justice are obviously of great concern to me. But as
soon as I tried to pin down what they were, I was struck by the diversity
of opinion about what is meant by human rights or what constitutes a just
society.

Despite that, I think
we all share an intuitive sense of what human rights and social justice
are about.

Human rights as we
name them are tokens for the lived experience of freedom, material equality
and community.1 They are the minimum standards which are due to
all human beings for the sole reason that we are human beings. No other
condition need be fulfilled.

At the core, the
most basic human right is the right to life, encompassing all those rights
essential for human survival and human security. These include the fundamental
rights to adequate food, shelter, and health care, and freedom from violence
or any form of genocide.

Beyond that are the
rights essential to human dignity and integrity; the rights to live freely
and without fear of persecution or discrimination; the right to participate
fully in cultural and political life; the freedom and ability to practice
your chosen culture, spirituality or religion; being able to pursue your
education and employment in ways which are appropriate to your culture;
being free to live with your chosen community or family. 2

Basically they are
having the opportunity to exist as you would choose to without gross interference
or violation, and having the means to do so.

While human rights
can be confirmed by legal instruments, the law is not their source. Human
rights are those rights inherent in each person by virtue of their birth
and human dignity. They precede human made law. They are not granted by
any authority or government, and in fact their legitimacy is not dependent
on whether anyone recognises them.

You could say that
social justice is what we will achieve when all peoples enjoy their
human rights. Concerns of social justice are concerns about the way the
resources of a society are allocated, the nature of the social relations,
and the opportunities of all members of the society.

But at the end of
the day, social justice is going to have a negotiated meaning, with different
sectors of society arguing for their particular interests; so the crucial
question is going to be: who gets to negotiate, and whose voices are given
due consideration in the final act of balancing competing interests?

When you start to
ask those type of questions, you come out of the ideal or descriptive
world of human rights, and into the world of practical reality where things
are a lot more ambiguous and difficult.

Just as it would
be impossible to describe heaven, it is difficult to pin down these somewhat
mercurial concepts.

The irony is that
people deprived of their rights and oppressed by injustice know in their
hearts with undying clarity what these things are about. A human being
cannot fail to know when they are deprived of the right to live in dignity
and to be respected as a full human being.

So perhaps the concepts
are best illustrated by describing some gross violations of human rights.

You know what the
violation of your human rights means when you get up in the morning and
there isn't a decent toilet. And the kids are sick again because the water
is still contaminated.

You learn a bit more
about what the violation of human rights means when you are moved off
the land which your people have occupied for thousands of years so a multinational
company can mine it and you're not given a say or a cent. Or when you're
not allowed to go to court to make a claim because the government has
passed legislation backing the interests of the powerful mining companies
over your lives.

It means having 26
times more likelihood of being taken into police custody than your white
counterparts, facing the fear of being harassed if not bashed in the cells,
and being more likely to be sent to prison rather than receiving a non-custodial
sentence.

It means having a
life expectancy which is 20 years less than the average of all people
in the same country 3, and dying at ten times the rate of the national
average 4. It means being 50% more likely to commit suicide.5

It means having children
who are 3 times more likely to die in infancy 6, or being four
to five times more likely to die in childbirth 7. It means that
if your child does live they will almost definitely suffer hearing impediments
before they are even four months old 8, and that they will have
less access to decent medical services than any other children.

It means that as
your children grow older they will have a significantly lower chance than
any other group of children in the country of getting through high school
9 and later of getting a decent job. 10

Every one
of the experiences I have just listed are happening to Aboriginal and
Torres Strait Islander peoples in this country today.

If we move back just
26 years, you could illustrate the absence of human rights by considering
a family who can not go to visit their relatives who live just across
the state border, where the adults are not allowed to vote, where the
oldest kids have disappeared and been placed with another family or in
an institution, and where the kids left are not allowed to speak or learn
their own language at school.

When you are born
as an Indigenous person in this country, you can get a lifetime of on-the-job
experience studying human rights - through their absence.

Today, as we approach
the twenty first century, peoples throughout the world, and in particular
Indigenous peoples face the stark facts of systematic violation of rights.
We suffer continued discrimination and marginalisation. Our lands and
cultures continue to be stolen, destroyed and exploited.

In many parts of
the world, our Indigenous brothers and sisters are still being murdered
to clear the way for progress and profit.

It's a sobering experience
to meet with Indigenous representatives from other parts of the world
and to hear with haunting regularity the story of exploitation and abuse.
Yanomami Indians of Brazil tell how their territories have been invaded
by 45 000 gold miners whose mining activities have led to the entire river
system of the Yanomami territory being poisoned by mercury, the death
of 15% of the Indigenous population and the destruction of entire villages.
The decision to proceed with these schemes received the permission and
support of the Brazilian Government and preceded with no consent or participation
of the traditional owners of the land.

Similar stories are
told by Indigenous peoples from every corner of the earth whose lands
and peoples are sacrificed at the hands of ever encroaching multinational
companies seeking new sources of profit, and inevitably with the approval
of the state. The Alutiiq of Alaska, the Udege of Far East Russia, the
tribal people of the Chittagong hill tracts of Bangladesh, the Lumad of
the Philippines are but a few who continue to fight against the physical
destruction of their peoples and cultures.

So we know very well
what human rights and social justice are.

The problem is that
the enjoyment of human rights depends on the respect and action of all
individuals and authorities in a society. "Rights" by their
nature imply obligations which must be honoured and duties which must
be carried out by those on whom they fall. As the French Philosopher Albert
Camus wrote:

freedom is .....
a possession to be secured everyday by the effort of each and the union
of all.

If we are going to
attain social justice for all peoples, we must be able to communicate
what that means and insist that it be a priority in the social and economic
policies of the governments which control our traditional territories.

Increasingly, Indigenous
peoples are looking to international and domestic human rights laws to
turn the principles of justice into positive rights. Our hope is that
by imposing legal obligations and offering legal remedies they will secure
the fuller enjoyment of our human rights.

Again, it is worth
remembering that if contemporary human rights law is to be our ally, then
it comes against a background where the laws of colonial nations, and
even the international law, have largely failed us. At worst they have
been the instruments of our oppression; at best they failed to actively
or adequately support our rights.

It is a sad indictment
of where Indigenous people have been on the international agenda that,
despite the existence of more than 70 United Nations human rights instruments,
there is no instrument which adequately or comprehensively sets out or
seeks to protect the distinctive rights of Indigenous peoples. Nor do
Indigenous peoples have the right to a voice as peoples in international
fora such as the United Nations. We must either speak as individuals,
or from within the very nations from which we need protection.

However, in recent
years, due to the strenuous efforts of Indigenous peoples, there have
been moves to further the legal protection of Indigenous rights. For the
last eleven years, Indigenous representatives from all over the world
have been meeting in Geneva with the United Nations Working Group on Indigenous
Populations to articulate our particular rights, and to produce the Draft
Declaration on the Rights of Indigenous Peoples. This year the final work
has been done on the Draft Declaration, which will now go up through the
United Nations system and eventually to the General Assembly for adoption.

I'd like now to make
some general comments about the nature of Indigenous rights, and to refer
to some of the key areas.

*
* * * * * * *

I spoke earlier of
the fundamental human rights Indigenous peoples share with all others.
These are universal and non-negotiable.

However, an understanding
of the distinct rights of Indigenous peoples must begin with the
recognition that we are unique peoples. First peoples. We belong to the
lands to which we are Indigenous. Our cultures and our lands are inseparable,
and the relationship with our lands preceded the introduction of all other
cultures and peoples. As such we have prior and distinct rights over those
lands.

From this basic recognition
follow the main points about Indigenous rights.

1. Indigenous
rights are inherent rights

First of all, our
rights, including our rights to our land, to practice our law, and to
maintain and develop our cultures are inherent. They are not given
by any one or any government. Nor can they be taken away. Sadly, they
can be abused.

When, in 1992 the
High Court recognised the existence of native title, what it did was acknowledge
that in 1788 Aboriginal and Torres Strait Islander people had rights over
land, and that those rights continued to exist.

By rejecting the
concept of terra nullius, the High Court decision in fact did not give
Indigenous people anything. All that it did was invalidate the fiction
which had supported the systematic and legalised violation of our rights.

2. The right
to distinct status and to culture

Secondly, we have
distinct rights. It is too often mistakenly asserted that equality means
treating everyone in the same way.

Equality without
a cultural context can itself become a form of discrimination and a violation
of rights. To assert that we are different or that our distinct status
demands different conditions is not a matter of charity or welfare, it
is a simple recognition of who we are.

Thus, when the high
court recognised native title as uniquely applying to Indigenous people,
it did not discriminate against any other group. Nor did it add to the
welfare of Indigenous people. It recognised that only Indigenous people
possess the particular relationship with land which has been called native
title, and that we must be permitted to enjoy the associated rights.

From the recognition
of our distinct status there must also follow a respect for that distinct
status. It is crucial that Indigenous peoples be allowed and supported
to maintain and develop our distinct identities, and that we be able to
practice and revitalise our cultural traditions and spirituality.

Full recognition
of our right to distinct status as distinct peoples means that we must
suffer no form of discrimination or interference when we choose to identify
or live as Indigenous peoples. And, more than this it means that effective
measures must be taken to ensure that we have the resources and means
to support and strengthen our Indigenous identities and cultures.

Any derogation from
this right, including policies of forced assimilation is cultural genocide.

To understand the
importance of this right, I take you back to what I said about the war
that is being waged on Indigenous peoples and cultures. it should be of
the greatest concern to everyone in the world that such genocide has led
to the irreversible destruction of many of our cultures.

It is no secret that
many Indigenous peoples have already become extinct, or are seriously
threatened. In fact, today in the United States of America and Europe,
a program is being developed for the collection of human DNA samples from
particular Indigenous peoples, including Aboriginal and Torres Strait
Islander groups, who have been identified as threatened, so that the gene
pool can be 'preserved'.

Entitled the Human
Genome Diversity Project, this venture would have to be one of the more
repulsive examples of the total disregard for the dignity and humanity
of Indigenous peoples, and the willingness to exploit us with the grossest
insensitivity.

The project labels
threatened peoples 'isolates of historic interest' or 'ihi's'. Not peoples
who are about to be lost to the world; not peoples who have been abused
and violated to the point of extinction; not peoples who are in desperate
need of the respect and support to survive in their integrity; but 'isolates
of historic interest'.

It's sadly indicative
that this type of effort can be put into preserving samples, but when
we are still peoples we are not deemed equally worthy. In fact, at an
average of $US 2,300 per sample, the project will spend more money gathering
our blood than the per capita GNP of any of the world's 110 poorest countries.
Just a fraction of the money or effort could make an enormous difference
to the survival and quality of the lives of our peoples.

We have informally
named the project the 'vampire project' for obvious reasons.

Finally, in the context
of the right to our distinct identity, it must be recognised that part
of the distinct identity of Indigenous peoples is that we are peoples
with a common identity and collective rights.

As Indigenous peoples,
we assert that our identity and our rights are not reducible to the rights
of individuals, and that full enjoyment of our rights will include our
rights as peoples.

With its cult of
individual and emphasis on individual rights, non-Indigenous people in
the western world have failed to acknowledge the collective nature of
Indigenous societies, and have provided inadequate protection for the
group rights of peoples.

The differences are
clearly illustrated by looking at the concept of freedom of religious
belief. In western cultures, this freedom has been protected by the right
to freedom of individual conscience. Because in western religion, spiritual
practice is grounded in the relationship between the individual and his
or her god.

For Indigenous cultures,
protecting the right to individual conscience does little to protect the
right to practice our religions. Because that practice is grounded in
our ceremonial kinship relationships with each other and our land. Religion
for us is a biosystem of human belief inextricably linked to the physical
and spiritual environment. To separate us out and say we have religious
freedom is nonsensical within our cultural context.

3.  The
right to self-determination

The most fundamental
group right, and the one which follows directly from the concept of distinct
status is the right of self-determination.

In the face of the
total disregard for our integrity and authority as peoples, it is crucially
important to Indigenous peoples today that our right to self-determination
be respected and that we, like other peoples have the right to freely
determine political status and freely pursue economic, social and cultural
development. 11

When we talk about
self-determination, we are not talking about a particular outcome, we
are talking about a process. A process in which we are full subjects in
control of the matters which effect our lives.

Time and time again
Indigenous people express the view that the right to self-determination
is the pillar on which all other rights rest. It is of such a profound
nature that the integrity of all other rights depends on its observance.

We hold that it is
a right that has operated since time immemorial amongst our peoples, but
it is the right which is at the centre of the abuses we have suffered
in the face of invasion and colonisation.

The dominant theme
of our lives since colonisation has been that we have been deprived of
the very basic right to determine our own future, to choose how we would
live, to follow our own laws.

When you understand
that, you understand why the right to self-determination is at the heart
of our aspirations.

4. Land rights

Finally, if self-determination
is the process which must underlie the recognition of all our rights,
land is the base for our Indigenous identities and the foundation for
the enjoyment of our rights.

To fully understand
why land rights are so important to Indigenous peoples, you have to move
out of the paradigm that sees land as purely a commodity to be exploited.
The deep connection which Indigenous peoples have with our land has been
totally disregarded by non-Indigenous cultures.

For us, land has
a spiritual, cultural, political and economic value. It supports
our identity, our spirit, our social relations, our cultural integrity,
and our survival. Land is the source of our physical and spiritual sustenance.
Removed from our land we are literally removed from ourselves.

Again, we have had
to emphasise this right because it has been so grossly violated. In this
country, until 1992 there was a total denial that we had any rightful
claim over our territories whatsoever. It has been degrading and humiliating
for Indigenous peoples to have been forced into a position where land
rights were seen as essentially a matter of welfare, dependant on the
generosity of the state.

The importance of
the High Court native title decision lies in the fact that it gave credibility
to our assertion that we have rightful claims to land. It allowed us to
move from a position of weakness and welfare to a position of strength
and legal rights.

*
* * * * * * *

Perhaps the key point
to be made about Indigenous peoples and social justice is that our claims
must not be seen as a matter of welfare, but rather as a matter of rights.
As long as we are perceived, or we perceive ourselves as asking,
we occupy a position which is powerless and destructive to our sense of
worth and dignity. When we can assert our rights we can stand with our
dignity and relate to non-Indigenous peoples from a place of strength.

But ultimately, what
is going to count for Indigenous peoples is our lived experience. Knowing
that we have rights, or even having rights in law doesn't in itself improve
our health, or educate our kids or stop us being removed from our lands.

At the end of the
day our plight will rest on compassion, respect and action. Because even
the law is ultimately interpreted and enforced by human beings under the
sway of their conscience and commitment.

As the Prime Minister
pointed out in his historic Redfern address for the opening of the International
Year of the World's Indigenous People, it was the failure to make the
most basic of human responses, that of entering into the hearts and minds
of others, which allowed and continues to allow non-Indigenous people
to commit the horrendous acts of destruction which have plagued our peoples.

If we are to survive
as peoples, we must be able to convey what it is like to live in a state
of oppression and threat. Those who do not know the meaning of oppression
have to be given the opportunity to visit from the inside the place we
are coming from.

Unless all peoples
are touched with this understanding, until there is full recognition of
the gravity of the situation, until all people believe that human rights
of all peoples must be respected, the marginalisation of the rights
of Indigenous peoples will continue.

I believe that what
we have seen in recent weeks in relation to the settlement of native title
has poignantly captured the conflict and the challenge which faces us.
Powerful vested interests have worked relentlessly to maintain the social
and economic systems which structurally exclude other groups of peoples.

They use their powerful
voices to argue that human rights concerns must not be allowed to stand
in the way of economic development. They use their powerful voices to
induce paranoia in the attempt convince the people of this country that
their interest lay in supporting the status quo, regardless of its legal
or moral basis. And there have been political figures who have been willing
to support those interests and to ignore the voices of those seeking justice.

And I think that
is pretty shameful.

But this time, the
debate has been vigorous, and the proponents of justice have not been
relegated to the margins. For some time there has been a growing consciousness
that a society ruled entirely by the ethics of profit, exploitation of
the environment and economic rationalism does not in the end support a
decent quality of life for the majority of people.

But what is different
now is that we have found allies of justice in powerful positions.

I believe that there
is reason for optimism when the Prime Minister of this country takes the
concerns and rights of Indigenous peoples no less seriously than he does
the interests of other groups of society. There is even more reason for
optimism when he is willing to stand up in support of those rights in
the face of powerful opposition.

For too long we have
watched our peoples done over as time and time again the interests of
others were placed above our fundamental human rights. And it does terrible
things to the spirit of a people when they lose hope of ever being seen
as a genuine priority. The actions of the Prime Minister may yet be medicine
for our spirit.

It is often said
that even a positive result in the native title debate would directly
benefit only 5% of Aboriginal and Torres Strait Islander people. I believe
that in fact it will be to the benefit of all Indigenous and non-Indigenous
peoples of this country.

For Indigenous peoples
it would signify a genuine commitment to action beyond the rhetoric of
social justice. For non-Indigenous people it would mean being able to
live knowing that they had not been active participants in the history
of "unutterable shame", and that they had been the generation
to bring justice to this country.

But I believe that
with vision, it could mean even more than that.

It is now all too
evident that dominant models of land and social management are failing.
The detrimental effects which single minded progress have had on the environment
are no longer escapable. Nor is the suffering of an ever growing number
of people who have been the victims of the great dreams of development.

I began with the
invocation to walk in the footprints of our ancestors. I believe that
it would be to the benefit of all peoples to look back to the world views
and knowledge of Indigenous peoples. We are after all the peoples who
lived for millennia with the land without bringing it, or us to the state
of simmering crisis we now face.

It is our belief
that our cultures offer a source of opportunity for a more equal, just
and sustainable future. It is my hope that we will have the vision and
respect to give ourselves that opportunity.

Endnotes

1. The concept
of  'rights fetishism' from which this description of rights comes
is developed by Valerie Kerruish is Jurisprudence as Ideology,
Routeledge, 1991, p. 142.

2. For a fuller
exploration of the meaning of human rights, see Julia Hausermann, Myths
and Realities, in Davies, P (ed) Human Rights, p. 127.

3. Based on
1991 census figures the average age of death for non-Aboriginal men was
74, while for Aboriginal men it was 57. For women, the figures are 80
and 64.5 respectively.

4. Reported
in the Medical Observer, 16 April 1993.

5. Reported
in the Age, 23 July 1993.

6. NT Health
Department figures reported in the NT News, 16 December 1992.

7. National
Health and Medical Research Council statistics.

8. These figures
apply to Aboriginal children in the Torres Strait Islands and do not apply
to all Aboriginal children.

9. Only 80%
of Indigenous children of compulsory school age are in primary or secondary
schools compared with a national participation rate of close to 100%.
About 30% of Indigenous children aged 16 or 17 years are in formal education
or training compared with a national rate of 75%.Only 7% of 18 to 20 year
olds were in formal education or training compared to a national rate
of more than 40%. Only 50% of Aboriginal children have some pre-schooling
compared with a national rate of 90%. Figures announced by Robert Tickner
in January 1993, reported in the Canberra Times, 18 January 1993.

10. 1991 census
figures indicate that 31% of Aboriginal people are unemployed, and a further
20 000 are working for the dole.

11. Article
1 of the International Covenant on Civil and Political Rights provides
that:

All peoples
have the right to self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social
and cultural development.

The right
to self-determination is also set out in Article 1 of the International
Covenant on Economic, Social and Cultural Rights.

The interpretation
of the right to self-determination has been subject to much recent debate,
and has generally been interpreted by nation states as not applying
to Indigenous peoples. This is seen by Indigenous peoples as discriminatory,
as they are peoples, and the Draft Declaration on the Rights of Indigenous
Peoples currently sets out that the unqualified right to self-determination
is a right of Indigenous peoples.

For a fuller
discussion of this debate, see, for example, Nettheim, G., "‘Peoples’
or ‘Populations’: Indigenous Peoples and the rights of Peoples",
in Crawford (ed.) The Rights of Peoples, Clarendon Press, 1988.

Last
updated 1 December 2001