HREOC Social Justice Report 2002: Self-determination - the freedom to 'live well'

Social Justice Report 2002

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Chapter
2: Self-determination
- the freedom to 'live well'

Self-determination
and the ‘politics of symbolism’

(Re-)Defining
self-determination

a)
Do Indigenous peoples have a right to self-determination?

b) What is Indigenous self-determination?

c) Summary - Defining Indigenous self-determination

The Government’s
approach to self-determination

a)
Reconcilation

b) Domestic policy debates about the rights agenda,
treaty and governance reform

c) International debates on self-determination

d) Summary - the Government's position on self-determination

Implementing
Indigenous self-determination in Australia

Conclusion
– Reclaiming self-determination

---

Aborigines and Torres
Strait Islanders continue to state their desire to be self-determining.
Recent years, however, have been characterised by an increased attack
by the Government and a range of conservative commentators on the legitimacy
of such aspirations. At the same time that the nation as a whole, through
the reconciliation process, has been contemplating what changes are necessary
to make the relationship with Indigenous peoples more equitable, the federal
Government has expressed its absolute opposition to any recognition of
a right to self-determination or collective status for Indigenous peoples
in its domestic policy approach. Instead the Government has preferred
concepts relating to individual empowerment and responsibility, as if
such attributes were in conflict with self-determination. The question
is whether the difference is merely a rhetorical one or whether it has
significant implications for the policy approach to Indigenous issues
in this country.

The rejection of
Indigenous self-determination has been even more fervently pursued by
the Government in the international arena. Australia is one of only four
countries that actively pursue the rejection of Indigenous peoples' self-determination
and collective rights in the annual negotiations on the Draft Declaration
on the Rights of Indigenous Peoples at the United Nations. In both the
domestic and international arenas, Australia's opposition to recognition
of a right to self-determination has been based on simplistic, and often
legally incorrect, assumptions which present self-determination as purely
symbolic, as a catchcry for all the failings of Indigenous policy in the
past thirty years, or as 'a rigid choice between all or nothing - between
the forming of an independent state or complete denial of a cultural and
political identity'.[1] The reality of Indigenous self-determination,
however, lies between these extremes and is a process of negotiation,
accommodation and participation. Importantly, it is also about Indigenous
peoples accepting responsibility and governments removing the controlling
hand in order to ensure that such acceptance is meaningful and has consequences.

In this chapter I
answer the question 'what is Indigenous self-determination?' by examining
how this concept has developed in international law. I then examine the
Government's position on self-determination in both the domestic and international
arenas and provide an analysis of their approach. This analysis builds
on the discussion of the importance of recognising self-determination
as part of the reconciliation process that was contained in the Social
Justice Report 2000.[2]

Self-determination
and the 'politics of symbolism'

The past four years
have seen the Government systematically lock into place its ideological
approach to Indigenous affairs. 'Practical reconciliation' has been continually
refined and has now infused (or perhaps infiltrated) into all areas of
policy making and programme design - including at the inter-governmental
level. In March 2002, the Minister for Aboriginal and Torres Strait Islander
Affairs even went so far as to seek to repackage this approach as something
new by proclaiming at the ATSIC National Policy Conference that the Government
was 'changing direction' on Indigenous policy.[3] The
reality, however, has been 'business as usual'.

The principal indicator
of a change in direction in Indigenous policy occurred between 1996 and
1998 when the Government decided that it would no longer support the principle
of self-determination as the basis of Indigenous policy formulation and
in particular, when it announced that it would actively oppose recognition
of Indigenous peoples' entitlement to such a right in international negotiations.
In explaining the decision the Minister for Foreign Affairs stated that
the Government would argue 'that it might be better to use the term self-management
rather than leaving an impression that we are prepared to have an Indigenous
state'.[4]

Speaking at the United
Nations Working Group on Indigenous Populations in 1999, the then Minister
for Aboriginal and Torres Strait Islander Affairs drew the now familiar
distinction between so-called 'real' as opposed to 'symbolic' issues.
He suggested that negotiations on the United Nations Draft Declaration
on the Rights of Indigenous Peoples and its emphasis on self-determination
and collective rights risked becoming 'a distraction from the real tasks
and priorities at hand'. Instead, he stated the Government rejected 'the
politics of symbolism' and was instead focused on 'practical measures
leading to practical results'. [5] The Government then
stated its preference for the concepts of self-management and self-empowerment
rather than self-determination.

Historically, the
term self-determination was first applied to Indigenous policy by the
Whitlam government in 1972. It replaced the by then largely discredited
policy of assimilation. The most immediate impact of the adoption of the
language of self-determination was to unequivocally reject the paternalism
of policies of the past. It was a statement of the practical reality that
assimilation simply didn't work.

There is some continuity
in language of the current Government's approach with that of the Fraser
government from 1975. Upon election it had 'retreated somewhat from the
rhetoric of self-determination in Australian Indigenous policy, preferring
instead the term "self-management"… with an emphasis on
responsibilities as much as, if not more than, on rights'.[6]
The retreat was, however, largely symbolic 'as it overlay a continuity
of institutional development' [7] and reform of Indigenous
policy and programmes, most notably in the development of Indigenous community
organisations and through the introduction of land rights legislation
in the Northern Territory.

The Hawke and Keating
governments both used the term self-determination almost interchangeably
with that of self-management through the 1980's and early 1990's. By 1992,
however, all Australian governments officially endorsed self-determination
as the basis of policy development in responding to the recommendations
of the Royal Commission into Aboriginal Deaths in Custody. This was reinforced
through the Council of Australian Government's 1992 National Commitment
to improved outcomes in the delivery of programs and services for Aboriginal
peoples and Torres Strait Islanders which established as a guiding
principle for service delivery by all levels of government the 'empowerment,
self-determination and self-management by Aboriginal peoples and Torres
Strait Islanders'.[8]

In light of this
broad acceptance of self-determination by Government for just under thirty
years, the question that has to be asked is how have we now reached the
situation where the Government has rejected self-determination on the
basis that it is purely a matter of 'symbolism' divorced from the day
to day lives of Indigenous peoples in this country?

In my view, there
are four main answers to this question. The first is political in nature
- that the concept of self-determination has never transcended its historical
roots in Australia. Self-determination has in many ways been defined by
what it is not, i.e. assimilation, with an occasional lack of clarity
as to what people actually mean when they use the term. For many it has
become a political slogan and a rhetorical device.

In its 1972 version,
self-determination has been synonymous with a notion of community control
or empowerment. It saw a shift from a situation of total control by government,
with limited flexibility and involvement of Indigenous people in decision-making
processes, to the other extreme of simply handing over control to Indigenous
communities and organisations, with limited focus on accountability to
government or back to that community. In some ways we have not moved beyond
this 1972 concept, which may also explain why critics of self-determination
so often and so easily revert to assimilationist ideology in identifying
the way forward.

The second reason
is more institutional in nature - a bureaucratic version of self-determination
has been imposed on communities, often fitting them into a different straight-jacket
for service delivery and decision-making to the one that previously existed.
This version has required Indigenous communities to incorporate as associations
in order to receive the necessary funding grants. The result in many communities
is a plethora of separate organisations each established to meet usually
just one particular need of the community, who are continually required
to submit numerous separate funding grant applications in order to receive
short term funding for their activities. It has resulted in uncoordinated
service delivery that administratively has been highly inefficient, which
has not allowed communities to plan their activities in a coordinated,
holistic and longer term manner. This version of self-determination has
also seen communities 'handed' control and resources through this new
organisational sector with limited efforts to develop their institutional
capacity to manage and control the process effectively.

The third reason
is that, while this bureaucratic version of self-determination may have
overseen the vast development of an Indigenous community sector, it has
left Indigenous communities tied to the control of government. It has
been a largely rhetorical version of self-determination which has maintained
the existing power balances and ensured that the control mechanisms are
retained by governments. Institutional reform has been limited to the
creation of new layers of bureaucracy. It has to a large extent, and with
some exceptions, not extended to changes in the structure and responsibilities
of the institutions of government.

The fourth reason
is that for all the commitments to self-determination, such as through
COAG's 1992 National Commitment and the responses to the Royal Commission
into Aboriginal Deaths in Custody, these were in reality never implemented.
Self-determination as the centre-piece of Indigenous policy has to a large
extent been a statement of intention rather than of action. Real self-determination
has never been tried.

From this we can
see the basis of why the former Minister for Aboriginal and Torres Strait
Islander Affairs described the policy of self-determination as the 'politics
of symbolism'. It is wrong, however, to suggest that self-determination
is purely symbolic. It has been Government's attempts to implement it
that has been symbolic and that has distanced aspirations for self-determination
from the real issues.

There clearly remains
an ongoing need for the policy approaches of Government to break from
the past - but this does not mean discarding self-determination as a relic
of that past. Instead, we need to address the deficiencies in the implementation
of self-determination over the past thirty years. We need to reconceptualise
self-determination and restore meaning and content to it.

(Re-)Defining
self-determination

Self-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.
In my view, no government has grounds for fearing that. [9]

Professor Erica-Irene
Daes, Former Chair - United Nations Working Group on Indigenous Populations

In this section I
provide a detailed discussion of the key features of self-determination
as it has evolved in international law to date. While debate on the application
of self-determination to the situation of Indigenous peoples remain among
the most difficult and controversial currently taking place in any area
of the United Nations, there are a number of features about this right
that are now established in international law. There are also a range
of social and political matters which are also of relevance in understanding
self-determination. They are of great assistance in evaluating the adequacy
of the current approach to policy formulation in Australia, as well as
in explaining the key sticking points in debate over the recognition of
Indigenous self-determination in international negotiations.

The right of self-determination
is Article 1 of the International Covenant on Civil and Political Rights
(ICCPR) and the International Covenant on Economic, Social and Cultural
Rights (ICESCR). Australia is a party to both of these covenants and is
bound to act in compliance with their terms. Common Article 1 reads as
follows.[10]

Article 1

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

2. All peoples
may, for their own ends, freely dispose of their natural wealth and
resources without prejudice to any obligations arising out of international
economic co-operation, based upon the principle of mutual benefit, and
international law. In no case may a people be deprived of its own means
of subsistence.

3. The States Parties
to the present Covenant, including those having responsibility for the
administration of Non-Self-Governing and Trust Territories, shall promote
the realisation of the right of self-determination, and shall respect
that right, in conformity with the provisions of the Charter of the
United Nations.

Article 1 appears
simple in its formulation. It is, however, full of complexities. The Article
does not define self-determination. It also does not identify the forms
it may take. In terms of whom it applies to, Article 1 states that self-determination
is a right of 'all peoples'. There is, however, no internationally agreed
definition of a 'peoples'.

While the lack of
definition on these points may be frustrating to some, it has ensured
that the concept of self-determination has not been frozen in time and
has been able to evolve to changing global circumstances. Debates about
the application of self-determination to Indigenous peoples, for example,
move us beyond the de-colonisation framework of the post-world war two
period. This debate would not have taken place if more closed definitions
had been taken in Article 1.

Article 3 of the
Draft Declaration on the Rights of Indigenous Peoples seeks to declare
that Indigenous peoples are in fact a 'peoples' within the meaning of
the term. It states:

Article 3

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

This proposed language
is identical to that in Article 1(1) of the two international covenants,
with the substitution of the phrase 'indigenous peoples' for 'all peoples'.
As noted, Article 3 (and the Draft Declaration) is still under negotiation
at the United Nations and has not been adopted as yet. There are, therefore,
two main processes for the recognition of Indigenous self-determination
internationally: first, by recognising Indigenous peoples as 'peoples'
under Article 1 of the covenants and second, by declaring that Indigenous
peoples possess the right through Article 3 of the Draft Declaration.

While there are a
range of other Articles in the Draft Declaration that elaborate on the
dimensions of this right to self-determination, the following two Articles
have been of particular importance in international negotiations defining
the scope of Indigenous self-determination.

Article 31

Indigenous peoples,
as a specific form of exercising their right to self-determination,
have the right to autonomy or self-government in matters relating to
their internal and local affairs, including culture, religion, education,
information, media, health, housing, employment, social welfare, economic
activities, land and resources management, environment and entry by
non-members, as well as ways and means for financing these autonomous
functions.

Article 45

Nothing in this
Declaration may be interpreted as implying for any State, group or person
any right to engage in any activity or to perform any act contrary to
the Charter of the United Nations.

Much of the international
debate about self-determination in relation to Indigenous peoples has
revolved around the wording of Article 3 and its relationship to these
(and other) Articles. Given that Indigenous peoples' right to self-determination
can separately be recognised within the framework of the two international
covenants, and noting that a number of governments are currently attempting
to explicitly place limitations on the right of self-determination within
Article 3, it is important to note that the Draft Declaration also provides
that:

Bearing in mind
that nothing in this Declaration may be used to deny any peoples their
right of self-determination…

Article 44

Nothing in this
Declaration may be construed as diminishing or extinguishing existing
or future rights indigenous peoples may have or acquire.

There are two main
areas of debate about the provisions of the Draft Declaration as well
as about the application of the provisions of the international covenants.
First, is whether Indigenous peoples are entitled to a right of self-determination.
Second, if they are, what is the content of that right and what are the
limitations on its exercise (or put simply, what is Indigenous self-determination?).

a)
Do Indigenous peoples have a right to self-determination?

There have been three
main processes involving government decision-making at the international
level which have sought to grapple with the issue of whether Indigenous
peoples have a right to self-determination over the past twenty five years.
Two of these processes - the Organisation of American States negotiations
on a proposed American Declaration on the Rights of Indigenous Peoples
and the International Labour Organisation's negotiation of Convention
No. 169 - have delayed answering the question by using a disclaimer that
the use of the term 'peoples' in the declaration or convention respectively
shall not be construed as having any implications as regards the rights
which may attach to the term under international law. The third process
directly considering this issue is the negotiations on the Draft Declaration
on the Rights of Indigenous Peoples. Political recognition of the application
of self-determination to Indigenous peoples by the governments of the
world remains forthcoming in this process.

By contrast, there
have been two main developments through the independent, expert bodies
of the United Nations that suggest that Indigenous peoples do have
a right to self-determination.

First, recent practice
by the United Nations Human Rights Committee and the United Nations Committee
on Economic, Social and Cultural Rights (i.e., the two committees that
operate under and interpret the standards in the two international covenants)
clearly identifies self-determination as a right held by Indigenous peoples,
including in Australia. This can be seen from the following concluding
observations and jurisprudence of the committees.

Human Rights
Committee (HRC)

• Concluding
  observations on Australia,
  UN Doc CCPR/CO/69/AUS, which states at para 10 that 'The State party
  should take the necessary steps in order to secure for the Indigenous
  inhabitants a stronger role in decision-making over their traditional
  lands and natural resources (Article 1, para 2)'. The List of Issues
  of the Committee (UN Doc: CCPR/C/69/L/AUS, 25/04/2000, Issue 4) had
  asked 'What is the policy of Australia in relation to the applicability
  to the Indigenous peoples in Australia of the right of self-determination
  of all peoples?'

• Concluding
  observations on Canada,
  Un Doc: CCPR/C/79/Add.105, 7/4/99, paras 7,8.

• Concluding
  Observations on Norway,
  UN Doc: CCPR/C/79/Add.112, 05/11/99, paras 10 and 17, which provides
  (at para 17) that 'the Committee expects Norway to report on the Sami
  people's right to self-determination under Article 1 of the Covenant,
  including paragraph 2 of that Article'.

• Concluding
  observations on Sweden, UN Doc: CCPR/CO/74/SWE, 24/4/2002, para
  15;

• Lubicon
  Lake Band v Canada
  (1990) Un Doc: CCPR/C/38/D/167/1984; and

• Marshall
  (Mikmaq Tribal Society)
  (1991) UN Doc: CCPR/C/43/D/205/1986.

Committee on
Economic, Social and Cultural Rights (CESCR)

• List of Issues:
  Australia, UN Doc: E/C.12/Q/AUSTRAL/1, 23/05/2000, Issue 3: 'What
  are the issues relating to the rights of Indigenous Australians to
  self-determination, and how have these issues impeded the full realisation
  of their economic, social and cultural rights?'

• Concluding
  observations on Canada, UN Doc: E/C.12/1/Add.31, 10/12/98 (see
  also CESCR, List of issues: Canada, UN Doc: E/C.12/Q/CAN/1, 10 June
  1998, Issue 23);

• Concluding
  observations on Columbia, UN Doc: E/C.12/1/Add.74, 30/11/2001,
  paras 12, 33.

The second development
which lends support to the position that Indigenous peoples constitute
a 'peoples' under international law is in relation to the categorisation
of Indigenous peoples as distinct in status from minorities. This has
taken place through a variety of studies and processes within the United
Nations over the past thirty years.

Some of the issues
that the UN has had to face in this regard have included whether minorities
should be considered 'peoples' within the terms of the UN charter; whether
Indigenous Peoples are 'peoples' or 'minorities'; and if Indigenous peoples
are not 'minorities', what rights should be accorded them? [11]

Historically, the
early decades of the United Nations saw significant attention to and acceptance
of the importance of promoting self-determination and the protection of
human rights for the purpose of maintaining peace and friendly relations
between nations. Despite this, until the 1970s the United Nations had
devoted very little attention to the application of these principles to
the situation of Indigenous peoples and of minorities within nations.

Sharon Venne has
argued that developments relating to self-determination up to the 1970s
- such as General Assembly Resolution 1514 [12] (the
Declaration on the Granting of Independence to Colonial Countries and
Peoples) and General Assembly Resolution 2625 [13]
(the Declaration on Principles of International Law concerning Friendly
Relations and Cooperation among States in accordance with the Charter
of the United Nations) in particular - have resulted in 'a double
standard and unequal application of the principles as set down by the
General Assembly' [14] for Indigenous peoples. This
is by creating an artificial distinction between the colonialism that
they have suffered and other forms of colonialism to which the decolonisation
process applies.

Since that time,
there have been five major reports prepared by Special Rapporteurs to
the Sub-Commission on the Protection and Promotion of Minorities that
have considered these issues.[15] These are the reports
by the Special Rapporteurs Critescu (1976), Capotorti (1979), Gros Espiell
(1980), Deschenes (1985) and Cobo (1987).

In the first major
study of the right of self-determination, conducted by Special Rapporteur
Aureliu Cristescu, it was concluded that no distinction between 'peoples'
and 'indigenous peoples' could be found. He acknowledged that Indigenous
peoples, such as in the Americas, are appropriate peoples to whom the
right of self-determination as a legal principle should be applied, and
stated that 'the struggle against colonialism is the most important field
of application of the principle of equal rights and self-determination
of peoples'.[16]

A subsequent study
on self-determination and its relationship to the implementation of UN
resolutions was completed by Special Rapporteur Hector Gros Espiell in
1980. He noted that self-determination 'is a right of peoples, in other
words of a specific type of human community sharing a common desire to
establish an entity capable of functioning to ensure a common future'.[17]
On this basis he concluded that 'under contemporary international law
minorities do not have this right'. [18]

Difficulties remained
however due to the lack of definition of the term 'minorities'. Studies
were subsequently completed by Francesco Capotorti in 1979 on the right
of persons belonging to ethnic, religious and linguistic minorities [19]
and Mr Justice Jules Deschenes in 1985 on the definition of minorities.
[20] In both studies definitions of 'minority' were
proposed, although no definition has been adopted internationally. Around
the same time, Jose Martinez Cobo was undertaking his landmark study on
the problem of discrimination against Indigenous populations, where he
was grappling with issues of definition of Indigenous peoples.

Ultimately no official
definition of Indigenous peoples was adopted, with Cobo agreeing with
Indigenous peoples that the imposition of a definition may be limiting
and potentially wrongly exclude some people from having their indigenous
origin recognised. He reiterated self-identification as a fundamental
aspect of Indigenous peoples' right to self-determination. Cobo did, however,
offer a working definition as follows:

Indigenous communities,
peoples and nations are those which, having a historical continuity
with pre-invasion and pre-colonial societies that developed on their
territories, consider themselves distinct from other sectors of the
societies now prevailing on those territories, or parts of them. They
form at present, non-dominant sectors of society and are determined
to preserve, develop and transmit to future generations their ancestral
territories, and their ethnic identity, as the basis of their continued
existence as peoples, in accordance with their own cultural patterns,
social institutions and legal system. [21]

In looking to develop
a definition of 'minority' Justice Deschenes looked to this definition
of Indigenous peoples to see whether the categories of minorities and
Indigenous peoples could be combined. While he acknowledged that there
are a number of characteristics shared between the two groups he ultimately
concluded that there were aspects of the situation of Indigenous peoples
that were unique and that the description of Indigenous peoples could
not be used as 'a general definition of minorities'. He continued:

it would seem appropriate...
to include indigenous peoples as a separate category and pay attention
to their specific needs and rights. Indigenous peoples do not necessarily
constitute minorities and their situation is in many respects different
from that of national, ethnic, religious and linguistic minorities.[22]

In a recent working
paper on the relationship and distinction between the rights of persons
belonging to minorities and those of Indigenous peoples, Asbjorn Eide
looks at developments in the international system that have taken place
since these studies. The findings of these studies were largely followed
with the consequence that 'a dual track has emerged in United Nations
standard-setting with regard to minorities and indigenous peoples'.[23]

This is demonstrated
by examining the four sets of rights that have emerged in the international
human rights system to date. These are:

a) The general,
[individual]… human rights to which everyone is entitled, found
in the Universal Declaration on Human Rights and elaborated in subsequent
instruments, such as the two International Covenants of 1966…

b) The additional
rights specific to persons belonging to national or ethnic, religious
or linguistic minorities, found in Article 27 of the International
Covenant on Civil and Political Rights (ICCPR), the Declaration on the
Rights of Persons belonging to National or Ethnic, Religious or Linguistic
Minorities ("Minority Declaration"), and in several regional
instruments dealing with the rights of persons belonging to minorities.
They are formulated as rights of persons and therefore individual rights.
States have some duties to minorities as collectivities, however…[24]

Special minority
rights can be claimed by persons belonging to national or ethnic, linguistic
or religious minorities, but also by persons belonging to indigenous
peoples. The practice of the Human Rights Committee under Article 27
of the ICCPR bears this out…[25]

c) The special
rights of indigenous peoples and of indigenous individuals, found
in the ILO Convention concerning Indigenous and Tribal Peoples in Independent
Countries (No. 169) and - if and when adopted - in the Draft Declaration
on the Rights of Indigenous Peoples ("draft indigenous declaration"),
adopted by the Working Group on Indigenous Populations (WGIP) in 1993
and now before the Commission on Human Rights. They are mostly rights
of groups ("peoples") and therefore collective rights…[26]

The rights of indigenous
peoples, which, under present international law, are found only under
ILO Convention No. 169, can only be asserted by persons belonging to
indigenous peoples or their representatives. Members of non-indigenous
minorities cannot assert the(se) rights...[27]

d) The rights
of peoples as provided for in common Article 1 to the two International
Covenants of 1966. These are solely collective rights...[28]
There is still no consensus as to which collectivities are the beneficiaries
of the right to self-determination under Article 1.[29]

The specific rights
of minorities and indigenous peoples that have been recognised are qualified
by the requirement that their enjoyment shall not prejudice the enjoyment
by all persons of the universally recognised human rights and fundamental
freedoms (in category a) above). In other words, while there are specific
rights to protect the distinct cultural characteristics of minorities
and Indigenous peoples there is no scope for them to do so to the detriment
of other people or to impede the rights of individuals within those groups.

Asbjorn Eide identifies
significant differences in the development of minority rights as opposed
to Indigenous rights in the international system. He states:

The difference
can probably best be formulated as follows: whereas… instruments
concerning persons belonging to minorities aim at ensuring a space for
pluralism in togetherness, the instruments concerning indigenous peoples
are intended to allow for a high degree of autonomous development. Whereas
[minority rights place]… considerable emphasis on effective participation
in the larger society of which the minority is a part…, the provisions
regarding indigenous peoples seek to allocate authority to these peoples
so that they can make their own decisions… The right to participation
in the larger society is… given a secondary significance and expressed
as an optional right. Indigenous peoples have the right to participate
fully, if they so choose, through procedures determined by them,
in devising legislative or administrative measures that may affect them…
The underlying assumption must be that participation in the larger society
is not necessary when they have full authority of their own to make
the relevant decisions.

Closely linked
to this point is the difference concerning rights to land and natural
resources. [Minority rights]… contain no such (recognition), whereas
these are core elements (of indigenous rights). Other examples could
be mentioned to explain the fundamental difference between the thrust
of the rights of persons belonging to minorities and those of indigenous
peoples. It is logically connected to the basic point that the minority
instruments refer to rights of (individual) persons, whereas those concerning
the indigenous refer to rights of peoples. [30]

In answering the
question of the relationship between minority rights and the rights of
Indigenous peoples, on the one hand, and the rights of peoples to self-determination
as set out in common Article 1 to the International Covenants on the other
hand (i.e. who is entitled to category d) above), he notes:

For the rights
of persons belonging to minorities, the answer is simple: the relevant
instruments provide no right to group (collective) self-determination.
The rights of persons belonging to minorities are individual rights,
even if they in most cases can only be enjoyed in community with others.[31]

These developments
can be summarised as follows:

1. The rights of
persons belonging to minorities have developed by focusing on individual
rights and in a way that does not recognise a collective status as 'peoples'.
International law has not recognised a right to self-determination for
minorities.

2. By contrast,
the rights of Indigenous peoples have developed in a way that recognises
that they are distinct from minorities and that a key reason for this
is that they possess a collective status.

3. This leads to
the irresistible conclusion that Indigenous peoples are in fact 'peoples'
within the context of Article 1 of the international covenants. Some
UN studies have concluded as such.

4. This conclusion
has also been reached by the Human Rights Committee and the Committee
on Economic, Social and Cultural Rights, i.e. the two committees operating
under the international covenants.

5. Based on these
factors, the contention that Indigenous peoples constitute a 'peoples'
and possess the necessary collective identity to be recognised as enjoying
a right to self-determination can no longer be challenged with any legitimacy
or credibility.

6. The ongoing
debates over Article 3 of the Draft Declaration, the Organisation of
American States Draft Declaration and the provisions of ILO Convention
169 indicate, however, that States have not yet accepted this conclusion.

b) What
is Indigenous self-determination?

So what is Indigenous
self-determination? And does international law place any limitations on
its exercise and if so, what are they?

An international
conference of experts was convened by UNESCO in 1998 to consider the role
of self-determination in preventing conflict and contributing to peace
and security. It developed the following description of self-determination.

[Self-determination
is] an ongoing process of choice for the achievement of human security
and fulfilment of human needs with a broad scope of possible outcomes
and expressions suited to different specific situations. These can include,
but are not limited to, guarantees of cultural security, forms of self-governance
and autonomy, economic self-reliance, effective participation at the
international level, land rights and the ability to care for the natural
environment, spiritual freedom and the various forms that ensure the
free expression and protection of collective identity in dignity.[32]

This description
identifies a number of salient features of Indigenous self-determination.
Primary among these is the recognition that self-determination is a
process for the achievement of human security and the fulfilment of human
needs. In the words of the UNESCO conference:

Peoples and communities
strive to gain control over the means to satisfy the human needs of
their members. The most important of these are the needs for human security
and welfare. By security, in this view, is included economic, health,
environmental and food security as well as security of the person from
physical violence, communal security (in terms of cultural integrity)
and political security, meaning respect for human rights and freedoms.
Thus, a variety of means, political structures and arrangements can
be conceived which would satisfy the human needs of communities and
their members.[33]

There is an objective
dimension to the provision of such security which is reflected in the
institutional processes that are put in place in accordance with the exercise
of self-determination. But there is also a subjective element to the attainment
of such security:

Especially for
peoples who have been disenfranchised, oppressed… etc. the need
for security can be a prime objective in the struggle for self-determination…[For
example, ] culture, being a core element of distinctiveness of peoples…
is often at the centre of a claim for self-determination when the cultural
identity and expression of the community is suppressed or threatened.
Respect for distinct cultural values and diversity is fundamental to
the notion of self-determination. For some communities the recognition
within the state of the value and distinctiveness of a group can be
an expression of the implementation of their right to self-determination.
For others, the authority and capability to exercise full cultural authority
within a set territory (or to exercise it in a non-territorial manner)
is an essential component of their exercise of self-determination.[34]

This subjective element
of self-determination should not be under-estimated. As Erica-Irene Daes
notes:

Self-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… The protection of this freedom unquestionably involves
some kind of collective political identity for indigenous nations and
peoples, i.e. it requires official recognition of their representatives
and institutions. However, the underlying goal of self-determination
for most indigenous peoples has not been the acquisition of institutional
power. Rather their goal has been achieving the freedom to live well
and humanly - and to determine what it means to live humanly…

It is important
that we must try to guard against a kind of false consciousness with
respect to achieving the true spirit of Indigenous self-determination…
the true test of self-determination is not whether indigenous peoples
have their own institutions, legislative authorities, laws, police and
judges. The true test of self-determination… is whether Indigenous
peoples themselves actually feel that they have choices about their
way of life. The existence of a genuine right to self-determination
cannot be only determined from the outward form of indigenous peoples'
self-governing or administrative institutions. The true test is a more
subjective one which must be addressed by indigenous peoples themselves.
[35]

Accordingly, essential
to the exercise of self-determination is choice, participation and control.
As the International Court of Justice notes in its Advisory Opinion on
Western Sahara, the essential requirement for self-determination is that
the outcome corresponds to the free and voluntary choice of the people
concerned. [36]

It follows that a
further essential feature of self-determination is that it does not
have a prescribed or pre-determined outcome. There are as many outcomes
possible as there are ways of governing, exercising control and administering
decisions. This may involve the exercise of choice by an Indigenous group
'to cede their right to make decisions' [37] over particular
issues or alternatively the choice to maintain decision-making and control
within the community.

Similarly, self-determination
is a process that is ongoing. It is not a one off event or something
that is defined as at a particular moment in history:

Self-determination
should not be viewed as a one time choice, but as an ongoing process
which ensures the continuance of a people's participation in decision-making
and control over its own destiny… This view makes it possible for
incremental changes to be implemented rather than forcing parties to
agree on definitive changes which can be too radical for some and insufficient
for others. Rather, it should be seen as a process by which parties
adjust and re-adjust their relationship, ideally for mutual benefit.
[38]

Self-determination
therefore requires first, that a State acknowledges that there exists
within, perhaps crossing, its borders a distinct group who legitimately
have claims to recognition as a 'peoples'; and second, that the State
agrees to enter a relationship with that group on the basis of equality
and mutual respect, to negotiate the basis of that group's engagement
and participation in the society.

What is apparent
from these features is that a notion of popular participation is inherent
to self-determination. As the Australian delegation stated to the
United Nations General Assembly in 1992:

Realisation of
the right to self-determination… entails the continuing right of
all peoples and individuals within each nation State to participate
fully in the political process by which they are governed. Clearly,
enhancing popular participation in this decision-making is an important
factor in realising the right to self-determination. It is evident that,
even in some countries which are formally fully democratic, structural
and procedural barriers exist which inhibit the full democratic participation
of particular popular groups.[39]

There are a number
of issues relating to the type of participation that is integral to the
realisation of self-determination in democratic countries like Australia.
The first goes to the core of the meaning of democracy. There is a tendency
- which has been particularly exacerbated in Australia in the past eighteen
months - to equate democracy solely with majority rule. Indigenous peoples,
who make up 2% of the total population, can never be part of this majority
and are subject to the goodwill of the rest of the society. The suggestion
that democracy means solely majority rule, however, is a fallacy - it
is not one of the basic democratic principles but instead 'a second best
procedural device for settling disagreement when other methods have been
exhausted'. [40] Clearly, Indigenous peoples' right
to self-determination is not safeguarded or respected by a reliance on
majority rule. Self-determination raises the issue of representativeness
and participation within the democratic principle.

The second issue
is that of the existence in democratic societies of 'structural and procedural
barriers' which may act to inhibit full participation. As I noted in the
Social Justice Report 2000, one of the ongoing impacts of the past
treatment of Indigenous peoples in Australia is the fact that the historic
'lack of respect for, and failure to recognise the value of, Indigenous
cultures permeates the design of the institutions of society and government'
[41] today.

The existence of
such institutional barriers in Australia has been identified in numerous
government reports. Most recently, it was graphically illustrated by the
inaccessibility of mainstream government services to Indigenous peoples
that was uncovered by the Commonwealth Grants Commission's report on Indigenous
funding.

Such institutionalised
barriers, however, can be masked by commitments to democratic ideals -
such as commitments to formal equality of treatment. As Dr Y Kly notes:

In situations of
minority oppression, racism and discrimination is usually given by States
as the reason for the maldevelopment of such non-dominant nations relative
to dominant nations in multinational states, and the solution voiced
by many governments is simply non-discrimination, as politically defined
by the state concerned. There is little or no comment on the need for
or type of institutional changes and special measures or self-determination
as is sought in… the indigenous situation…

Many multinational
states wishfully take great pride in their melting pot assimilationist
policies or tradition as proof of their commitment to non-discrimination
- as defined by them. But there can be a gross contradiction between
non-discrimination as politically defined by most states, and melting
pot policies or traditions which may often serve as a linguistic euphemism
and cover for what can in reality be more accurately defined as the
forced assimilation of nations, minorities and indigenous peoples, and
the resultant retardation of their social-economic and cultural development…

Where minority
resistance is limited, such as in the situation of… indigenous
people, melting pot policies themselves, when enforced by government
in conjunction with societal institutions, may become a chief reason
for institutional and systemic racial discrimination… This leaves
groups open to an almost unlimited assault on their human dignity, values,
community cohesion and economic independence, reducing the individual
member of such groups to a state of almost complete dependency in all
societal sectors, where his/her success is measured in terms of majority-dominated
processes and norms.[42]

As I also noted in
the Social Justice Report 2000 a commitment to equality that extends
no further than sameness of treatment confirms 'the position of Indigenous
people at the lowest rungs of Australian society. Demands for identical
or 'sameness' of treatment are tantamount to 'keeping us in our place'.[43]
The nature of participation and representativeness required by self-determination
necessitates going beyond such sameness of treatment and to strive for
institutional innovation.

There are further
implications flowing from this requirement for States to be representative
and facilitate popular participation. Ultimately, the maintenance of
the territorial integrity of the State is linked to respect for self-determination.

This can be seen
from the Declaration on the Granting of Independence to Colonial Countries
and Peoples (1960), the Declaration on Principles of International
Law concerning Friendly Relations and Cooperation among States in
accordance with the Charter of the United Nations (1970) (the Friendly
Relations Declaration),[44] and the Vienna Declaration
and Programme of Action of the World Conference on Human Rights (1993).
The Friendly Relations Declaration states, for example, that the recognition
of the right of all peoples to self-determination shall not:

be construed as
authorising or encouraging any action which would dismember or impair,
totally or in part, the territorial integrity or political unity of
sovereign and independent States conducting themselves in compliance
with the principles of equal rights and self-determination of peoples
as described above and thus possessed of a government representing the
whole people belonging to the territory without distinction as to race,
creed or colour.

As Erica-Irene Daes
notes:

The meaning of
the aforesaid provisions is plain. Once an independent State has been
established and recognised, its constituent peoples must try to express
their aspirations through the national political system, and not through
the creation of new States. This requirement continues unless the national
political system becomes so exclusive and non-democratic that it no
longer can be said to be 'representing the whole people'. At that point,
and if all international and diplomatic measures fail to protect the
peoples concerned from the State, they may perhaps be justified in creating
a new State for their safety and security. Indeed, in such a state of
affairs, legal arguments cease to have any real significance since peoples
will defend themselves by whatever means they can. Continued government
representivity and accountability is therefore a condition for enduring
enjoyment of the right of self-determination, and for continued application
of the territorial integrity and national unity principles.[45]

There are two consequences
of this. First, States have a responsibility to be representative and
accountable in accordance with the right of self-determination. Second,
territorial integrity will be guaranteed so long as they meet these obligations.[46]

Article 45 of the
Draft Declaration on the Rights of Indigenous Peoples was quoted at the
beginning of this section. It has the effect of qualifying the recognition
of Indigenous self-determination in Article 3 of the Draft Declaration
by making it subject to the provisions of the Friendly Relations Declaration
(among others). This means that, subject to these conditions, the recognition
of Indigenous self-determination through the Draft Declaration is qualified
in a way that guarantees the territorial integrity of States.[47]

A source of government
fears about secession and territorial integrity is the implications of
recognising Indigenous peoples' relationship to traditional lands and
resources. In many instances this is one of the most significant institutional
barriers to the realisation of Indigenous self-determination. As Erica-Irene
Daes notes in her final report on Indigenous Peoples and their relationship
to land:

it is difficult
to separate the concept of indigenous peoples' relationship with their
lands, territories and resources from that of their cultural differences
and values. The relationship with the land and all living things is
at the core of indigenous societies… [There is an] urgent need
for understanding by non?indigenous societies of the spiritual, social,
cultural, economic and political significance to indigenous societies
of their lands, territories and resources for their continued survival
and vitality.[48]

In particular, there
are four key elements which are unique to Indigenous peoples relationship
to land:

(i) a profound
relationship exists between indigenous peoples and their lands, territories
and resources; (ii) this relationship has various social, cultural,
spiritual, economic and political dimensions and responsibilities; (iii)
the collective dimension of this relationship is significant; and (iv)
the intergenerational aspect of such a relationship is also crucial
to indigenous peoples' identity, survival and cultural viability.[49]

Respect for Indigenous
peoples' relationship to land and resources is an integral component of
self-determination, from an economic, social, political and cultural dimension.

This relationship
to land can ordinarily, in my view, be recognised without impacting on
the territorial integrity of the State. Asbjorn Eide usefully explains
why by differentiating between territorial autonomy and what he terms
cultural autonomy:

Conceptually and
in practice, territorial autonomy should be kept separate from cultural
autonomy… Generally, it is difficult to accept a principle of territorial
autonomy based strictly on ethnic criteria, since this ran counter to
the basic principles of equality and non-discrimination between individuals
on racial or ethnic grounds. There are, on the other hand, strong arguments
in favour of forms of cultural autonomy which would make it possible
to maintain group identity. What is special for indigenous peoples is
that the preservation of cultural autonomy requires a considerable degree
of self-management and control over land and other natural resources.
This requires some degree of territorial autonomy. The scope of and
limits to such autonomy are difficult to specify, however, both in theory
and on the ground in specific cases.[50]

This leads us to
discussion of the main concern of States about Indigenous self-determination
- the possibility that it could lead to secession or the creation of separate
Indigenous states. Many governments participating in negotiations on the
Draft Declaration on the Rights of Indigenous Peoples do not oppose recognition
of Indigenous self-determination per se. Instead, they challenge the content
and form that Indigenous self-determination might take by seeking to:

• guarantee that
  its recognition will not affect their territorial integrity;

• place limitations
  on its definition by recognising Indigenous peoples' right to internal
  (as opposed to external) self-determination; or

• limit its recognition
  to situations of autonomy by attempting to re-draft Article 31 of the
  Draft Declaration (quoted at the beginning of this section) so that
  it reflects autonomy as the maximum form of self-determination that
  can be recognised rather than as an illustration or 'a specific form'
  of Indigenous self-determination.

What underlies each
of these positions is concern that recognition of Indigenous self-determination
will provide legitimacy to claims of secession or the creation of separate
Indigenous states. Governments seek guarantees that this will not take
place.

Secession is an
extreme expression of self-determination and one that will only occur
in the rarest of cases when all other processes have failed. It cannot
be absolutely discounted as a possible expression of self-determination.
The situation in East Timor is an excellent example of why it should not
be discounted. As the UNESCO conference noted:

In the broader
context of self-determination, separation or secession from the state
of which a people forms a part should be regarded as a right of last
resort. Thus, if the state and its successive governments have repeatedly
and for a long period oppressed a people, violated the human rights
and fundamental freedoms of its members, excluded its representatives
from decision-making especially on matters affecting the well-being
and security of the person, suppressed their culture, religion, language
and other attributes of the identity valued by the members, and if other
means of achieving a sufficient degree of self-government have been
tried and have clearly failed, then the question of secession can arise
as a means for the restoration of fundamental rights and freedoms and
the promotion of the well-being of the people... People and communities
may attempt to secede because independent statehood appears to them
to form the only means of obtaining the level of freedom and security
which they aspire to…[51]

There are six main
problems with the concerns expressed by governments as they relate to
secession. The first is that the approach of governments is ultimately
a pragmatic and political one. They do not argue that Indigenous peoples
are not entitled to self-determination as a matter of law. Instead
they look immediately to the most extreme potential impact of the exercise
of that right on the status quo. It is a political preference to preserve
the status quo.

The second is that
the fear of secession immediately conflates Indigenous self-determination
with the concept of state-hood. Indigenous peoples' aspirations are cast
in terms of the most extreme form of self-determination, the creation
of separate states. This is a fundamentally flawed approach. As noted
above, there are a range of international declarations which protect the
territorial integrity of states who meet their obligations to citizens.

The equation of
self-determination with secession is made without reference to the existing
state of international law and without an eye to history. Consequently,
it is an assumption that is 'neither legally correct nor politically necessary,
and… dangerously counter-historical in a world now beset by inter-group
conflicts far more complex than those the UN faced or fathomed at the
end of World War II'.[52]

The third broad factor
is that this approach simply lacks reality. We need only look to the struggle
of the East Timorese to know that international recognition of statehood
requires more than recognising a peoples' entitlement to self-determination.
In Australia, for example, the absence of any conflict or political movement
for secession by Indigenous peoples is an obvious indicator of the lack
of reality, indeed the absurdity, of any such claims.

The fourth factor
is the one of overarching concern. As Mililani Trask has noted, the attempts
to explicitly place limitations upon Indigenous peoples' right to self-determination
through the Draft Declaration - where limitations apply to no other peoples
- places at stake the fundamental basis of the entire international human
rights system. Suggestions that Indigenous self-determination be qualified
to guard against secession mean that:

There is a crisis
emerging in the field of human rights… At stake is nothing less
than the fundamental principle that human rights are universal. The
Charter of the United Nations, the Universal Declaration of Human Rights
and the International Human Rights Conventions are founded upon this
principle.[53]

The fifth factor
is that fears of secession by governments overlook the fact that self-determination
is not self-executing, unilateral or absolute in its application
and that it is a process of engagement and negotiation. When balanced
against principles such as the protection of territorial integrity, the
international community is highly unlikely to recognise secessionist movements
in States that are conducting themselves in good faith.

The sixth factor
is that for over twenty years in the Working Group on Indigenous Populations,
and in each session of negotiations on the Draft Declaration, Indigenous
peoples have indicated that generally they do not aspire to secession.
In the Australian context, Indigenous peoples are so numerically inferior
and geographically dispersed that it is nonsense to suggest that the creation
of separate states would be feasible. Indeed, in those areas of Australia
where Indigenous peoples are most numerous, culturally distinct and have
greater access to traditional land and resources - such as the Northern
Territory and Torres Strait - recent processes indicate that there are
no proposals on intentions for separatism.[54] At no
stage have any Indigenous Australians participating in international negotiations
on self-determination suggested that secession is a realistic option.

The fear of governments
of secession is not soundly based in existing law or indeed in political
reality. It has been suggested that to broach this impasse will require
States to take a leap of faith and take Indigenous peoples at their word.
This may be so, but it is an extremely kind way of referring to the actions
of States to date. Instead, I would suggest that what is required is
for governments to stop acting in bad faith by equating self-determination
with secession.

Government fears
of secession have also led to suggestions that Indigenous self-determination
should be limited to internal dimensions, as opposed to external dimensions.
There is, in my view, no justification for imposing an arbitrary restriction
to internal self-determination on Indigenous peoples. The participation
of Indigenous peoples in UN processes and in negotiations on the Draft
Declaration on the Rights of Indigenous Peoples demonstrates that there
are other external dimensions of Indigenous self-determination to secession.
The UNESCO conference also notes that:

The external aspect
of the right to self-determination is generally considered to be the
right to separate from the existing state. But there are other external
aspects which are of considerable relevance to the exercise of self-determination,
but which do not necessarily entail the creation of an independent state…

Indigenous peoples…
consider it important to participate in decision-making processes at
national and international levels relating to the conservation of nature
or its exploitation. By the same token, any people or community may
consider it of importance to include in its exercise of self-determination
the authority to participate in international discussions or be included
in international organisations where decisions are taken that affect
core aspects of their existence and development. This could include
participation… in regional organisations (examples include the
Sami Council's membership in the Nordic Council and the Circumpolar
conference), global organisations (the establishment of a Permanent
Forum for Indigenous Peoples within the United Nations system could
be an example of such participation) or in cultural or religious organisations…[55]

It is unfortunate
that the debate on the implications for secession of the recognition of
Indigenous self-determination has not moved beyond the discussion of these
matters in the Cobo study on the problem of discrimination against indigenous
populations, undertaken throughout the early 1970s and 1980s. In his final
report and recommendations, Cobo stated:

The unity which
is a legitimate concern of many States, particularly those that have
recently acceded to independence, can be achieved most fully and profoundly
through a genuine diversity which respects differences between existing
groups aspiring to a distinct identity within society as a whole. The
desired unity will be achieved more fully if it is based on diversity,
rather than an imposed uniformity inconsistent with the genuine feelings
of the population. Within that diversity, each group would participate
more fully since it would do so on the basis of its own conceptions,
values and patterns, rather than attempting to use modes of expression
which are foreign to it.[56]

Ultimately it is
my view that the debate about Indigenous self-determination through the
processes of the United Nations has become protracted and difficult because
it exposes and challenges the fundamental flaw of the UN law-making process.
Namely, that it is a process that depends on States (or governments) agreeing
to set the standards that they will then apply to themselves. In relation
to the situation of Indigenous peoples the world over, this means that
States have self-interest and illegitimate gains to protect.

The analysis in this
section demonstrates that in the international arena, the concerns about
applying self-determination to the situation of Indigenous peoples are
by and large not matters of law but are largely political matters which
reflect the reluctance of States to recognise Indigenous peoples' rights
for fear of the potential consequences. At core, the position of governments
internationally exposes the gap between theory, legality and the legitimacy
of the actions of governments, and the pragmatism of governments.

c) Summary
- Defining Indigenous self-determination

In summary, the following
factors can be identified about Indigenous peoples' right to self-determination.

1. Self-determination
is an ongoing process of choice for the achievement of human security
and fulfilment of human needs.

2. Respect for
distinct cultural values and diversity is fundamental to the notion
of self-determination.

3. The protection
of self-determination unquestionably involves some kind of collective
political identity for indigenous nations and peoples, i.e. it requires
official recognition of their representatives and institutions.

4. Respect for
Indigenous peoples' relationship to land and resources is an integral
component of self-determination, from an economic, social, political
and cultural dimension. A lack of control of traditional lands and resources
is often a significant institutional barrier to the realisation of Indigenous
self-determination.

5. Self-determination
contains a subjective element - it cannot be judged solely from objective
criteria. The true test of self-determination is whether Indigenous
peoples themselves actually feel that they have choices about their
way of life.

6. Essential to
the exercise of self-determination is choice, participation and control.
The essential requirement for self-determination is that the outcome
corresponds to the free and voluntary choice of the people concerned.

7. Self-determination
does not have a prescribed or pre-determined outcome.

8. Self-determination
is a process that is ongoing. It is not a one off event or something
that is defined as at a particular moment in history.

9. A notion of
popular participation is inherent to self-determination.

10. In a democracy,
Indigenous peoples' right to self-determination is not necessarily safeguarded
or respected by a reliance on majority rule. Self-determination raises
the issue of representativeness and participation within the democratic
principle.

11. 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.

12. Ultimately,
the maintenance of the territorial integrity of the State is linked
to respect for self-determination. Numerous UN declarations, such as
the Friendly Relations Declaration, limit the exercise of self-determination
so that it does not threaten territorial integrity or political unity
of States so long as those states conduct themselves in compliance with
the principles of equal rights and self-determination of peoples and
are representative.

13. Continued government
representivity and accountability is therefore a condition for enduring
enjoyment of the right of self-determination, and for continued application
of the territorial integrity and national unity principles.

14. Article 45
of the Draft Declaration on the Rights of Indigenous Peoples similarly
qualifies the recognition of Indigenous self-determination in Article
3 of the Draft Declaration by making it subject to the provisions of
the Friendly Relations Declaration (and other UN provisions). Hence,
the recognition of Indigenous self-determination through the Draft Declaration
is qualified in a way that guarantees the territorial integrity of States.

15. Secession is
an extreme expression of self-determination and one that will only occur
in the rarest of cases when all other processes have failed. Separation
or secession from the State of which a people forms a part should be
regarded as a right of last resort.

16. The fear of
secession by States immediately conflates Indigenous self-determination
with the concept of state-hood. The equation of self-determination with
secession is made without reference to the existing state of international
law and without an eye to history.

17. In Australia,
the absence of any conflict or political movement for secession by Indigenous
peoples is an obvious indicator of the lack of reality, indeed the absurdity,
of the claim that recognition of self-determination could lead to secession.

18. Self-determination
is not self-executing, unilateral or absolute in its application and
is a process of engagement and negotiation. When balanced against principles
such as the protection of territorial integrity, the international community
is highly unlikely to recognise secessionist movements in States that
are conducting themselves in good faith.

19. Indigenous
peoples have indicated that generally they do not aspire to secession.
Examples from Australia indicate that there are no aspirations for secession
by Indigenous Australians.

20. The fear by
governments of secession is not soundly based in existing law or political
reality. What is required for progress in recognition of Indigenous
self-determination is for governments to stop acting in bad faith by
automatically equating self-determination with secession.

21. There is no
justification for imposing an arbitrary restriction to internal self-determination
on Indigenous peoples. The participation of Indigenous peoples in UN
processes and in negotiations on the Draft Declaration on the Rights
of Indigenous Peoples demonstrates that there are numerous external
dimensions to their right to self-determination, other than secession.

22. Attempts to
qualify the recognition of Indigenous self-determination place the universality
of human rights at risk.

The Government's
approach to self-determination

So what exactly is
the Government's position on self-determination and how does it seek to
justify that position?

Since 1999, the Government
has made clear that it does not support self-determination as the underlying
principle for Indigenous policy development in Australia. The reasons
for this, however, are more elusive to track down. As the Government has
gone about the task of locking into place its practical reconciliation
approach it has simply disengaged on issues that it does not agree with.
Consequently, there has been very little effort by the Government to elaborate
a detailed position on self-determination. Accompanying this trend has
been the tendency for the Government to co-opt language that has traditionally
been used in relation to self-determination. An important question that
must be addressed therefore is whether their opposition to self-determination
is largely rhetorical and simply reflects a preference for a different
word, or whether it is a genuine rejection of the legal concept of self-determination.

There are three main
ways that we can piece together the Government's overall perspective on
self-determination. These are through its response to the reconciliation
process; responses to broader debates on Indigenous policy such as the
rights agenda, treaty and governance reform; and through international
negotiations on the Draft Declaration on the Rights of Indigenous Peoples.

a) Reconciliation

In May 2000, the
Council for Aboriginal Reconciliation released its documents of reconciliation.
These constituted the actions that they recommended should be taken principally
by governments to achieve reconciliation. These documents are the Australian
Declaration Towards Reconciliation and the Roadmap to reconciliation.
The Roadmap contained summaries of the Council's four, inter-related national
strategies for achieving reconciliation: namely, the strategies for overcoming
Indigenous disadvantage; achieving economic independence; recognising
Aboriginal and Torres Strait Islander rights; and sustaining the reconciliation
process. Between May and December 2000, the Council then released expanded
versions of the four national strategies detailing the basis for the recommendations
contained in the Roadmap as well as identifying key objectives and areas
for implementation. The Council's final report titled Australia's Challenge
was then released in December 2000. It contained further recommendations
for the giving effect to the actions identified in the four national strategies
and the Roadmap.

Each of these documents
contains recognition of the importance of Indigenous self-determination
for the reconciliation process. The Australian Declaration towards
Reconciliation, for example, includes the phrase 'And so, we pledge
ourselves to stop injustice, overcome disadvantage, and respect that Aboriginal
and Torres Strait Islander peoples have the right to self-determination
within the life of the nation'. [57]

In the National
Strategy for the Recognition of Aboriginal and Torres Strait Islander
Rights the Council for Aboriginal Reconciliation identifies the 'formal
recognition of the right of Aboriginal and Torres Strait Islander peoples
to self-determination within the life of the nation' [58]
as an important objective for reconciliation to be achieved. The Council
indicated that it 'supports self-determination as the guiding principle
for government policy on Aboriginal and Torres Strait Islander affairs
at all levels'. [59] Accordingly, the rights strategy
recommends that:

A. Governments
at all levels acknowledge Aboriginal and Torres Strait Islander peoples'
right to self-determination as the basis for policy on Aboriginal and
Torres Strait Islander affairs.

B. Governments
at all levels enter into negotiations with Aboriginal and Torres Strait
Islander peoples in order to realise self-determination goals.

C. Commonwealth
Government, ATSIC and Reconciliation Australia work together to promote
discussion and education on the meaning of self-determination in the
context of Aboriginal and Torres Strait Islander peoples.[60]

The Council explained
that 'Aboriginal and Torres Strait Islander peoples never had the opportunity
to participate in the nation-building surrounding federation. For Aboriginal
and Torres Strait Islander peoples… the need to negotiate this relationship
is central to their aspirations. It is often referred to in terms of self-determination'.[61]

The Council also
noted, in support of its position, that:

The meaning of
self-determination is often confused by references to secession and
separate statehood, but such references are unfairly inflammatory and
do not reflect Aboriginal and Torres Strait Islander aspirations. Self-determination
is much more about the process of decision-making. It reflects the need
for Aboriginal and Torres Strait Islander peoples to negotiate a relationship
with the Australian Government, which may lead to many outcomes that
have the potential to enhance rather then undermine our sense of national
unity. It also reflects the kind of autonomy and decision-making that
is already being exercised by communities who take responsibility for
the delivery of services or programs. That is, self-determination is
reflected in the recognition by governments of Aboriginal and Torres
Strait Islander peoples right to exercise a sphere of authority and
responsibility and the communities' exercise of that right.

In international
law self-determination is 'the right of all peoples to freely determine
their political status and to pursue their own economic, social and
cultural development'. It has its origins in the theory of self-government
- that a society should be able to determine for themselves how they
are to be governed and to make the decisions that directly affect them.
[62]

The Final Report
of the Council, titled Australia's challenge, took these proposals
one step further. Having acknowledged that Indigenous peoples have been
excluded from nation building in Australia, they recommended that:

• Each government
  and parliament recognise that the settlement of Australia took place
  without consent or treaty and accept the desirability of negotiating
  agreements or treaties to progress reconciliation, and enter into negotiations
  to establish a process to achieve this purpose and to ensure adequate
  protection of the rights of Indigenous peoples (recommendation 5); and

• The federal Parliament
  enact legislation to put into place a process for resolving unfinished
  business and to commence a treaty or agreement process (a draft Reconciliation
  Bill was appended to the report as a draft for this purpose)(recommendation
  6).[63]

The Government has
made clear that it does not accept these proposals by the Council for
Aboriginal Reconciliation. It immediately responded to the inclusion of
self-determination in the Australian Declaration Towards Reconciliation
by releasing its own, alternative version in May 2000. The text of the
Council's Declaration reads:

We desire a future
where all Australians enjoy their rights, accept their responsibilities,
and have the opportunity to achieve their full potential.

And so, we pledge
ourselves to stop injustice, overcome disadvantage, and respect that
Aboriginal and Torres Strait Islander peoples have the right to self-determination
within the life of the nation. [64]

The Government's
version, which has no formal status, reads in the alternative:

We desire a future
where all Australians enjoy equal rights, live under the same laws
and share opportunities and responsibilities according to their aspirations.

And so, we pledge
ourselves to stop injustice, overcome disadvantage, and respect the
right of Aboriginal and Torres Strait Islander peoples, along with all
Australians, to determine their own destiny. (Changes highlighted
in italics). [65]

The changes to the
Council's text make clear that the acceptance of rights and recognition
of culture will not extend to any differential treatment, particularly
where this is entrenched in law. They also remove the term self-determination
and replace it with the right of Indigenous peoples (in common with all
other Australians) 'to determine their own destiny'.

As noted in the progress
report on reconciliation in the Social Justice Report 2001, the Government
did not otherwise provide reasons for disagreeing with areas of the Council's
proposals once the Council's strategies and final report had been released.
Their comments indicated that they did not support the concept of a treaty
and that they did not accept the rights strategy. On these matters of
disagreement, however, they provided no detail as to what in particular
they did not accept or why.

Instead, the Government
stated in the most general of terms that they acknowledge that there are
many areas of agreement between the Government, the community and the
Council for achieving reconciliation and noted that there is no one approach
to achieving reconciliation. They have then sought to focus attention
on those areas where they see substantial agreement, rather than the issues
that divide us. This they have done through the catchcry of 'practical
reconciliation'.

It was not until
September 2002, more than two years after the release of the Council's
strategies and 21 months after the Council released its final report,
that the Government formally responded to the Council's documents. The
response is insubstantial at a mere 23 pages, yet it provides the most
extensive engagement by this Government on the issue of self-determination
and human rights to date.

In the response,
the Government restates that it cannot accept the Council's Declaration
and again offers the above alternative formulation on self-determination.
On these areas of difference to the Council's Declaration the Government's
response states:

The areas of difference
between the revised Declaration and the Council's Declaration relate
to areas where there remain clear differences of view in the community.
For example, the Government is unable to endorse the approach to customary
law in the Council's Declaration as the Government believes all Australians
are equally subject to a common set of laws. Neither can the Government
endorse the term 'self-determination' (which implies the possibility
of a separate indigenous state or states) although it unequivocally
supports the principle of Indigenous people having opportunities to
exercise control over aspects of their affairs (as reflected in the
establishment and operation of ATSIC for example)…[66]

The Government also
notes that while it cannot commit to the Declaration for these reasons,
it is prepared to reaffirm its support for reconciliation as expressed
through its Motion of Reconciliation passed by both Houses of Federal
Parliament on 26 August 1999. They state that the principles 'expressed
in the Motion remain entirely relevant to the Government's continuing
commitment to the cause of reconciliation'.[67] The
closest the motion gets to anything approaching a commitment to self-determination
(or indeed to partnership or consultation with Indigenous peoples on matters
that affect them) is a commitment 'to work together to strengthen the
bonds that unite us, to respect and appreciate our differences and to
build a fair and prosperous future in which we can all share'.[68]

Specifically on the
issue of self-determination, the Government's response to the Council's
documents states:

The Government
supports the principle that Indigenous people should have meaningful
opportunities to exercise control over their own affairs… However,
the Government is concerned that self-determination is defined by some
as representing the right to unilaterally challenge national sovereignty.
It carries the implication of a separate Indigenous state or states…
The Government prefers the terms self-management or self-empowerment,
believing that these terms are consistent with a situation in which
Indigenous people exercise meaningful control over aspects of their
own affairs in active partnership and consultation with government.

It is the responsibility
of government to ensure that all Australians have equality of opportunity
and access to services. The Government is concerned that self-determination
implies that a government must in some way relinquish responsibility
for and control over those aspects of well-being over which it rightly
has jurisdiction in common with its responsibility to all Australian
citizens... Very importantly, the Government is committed to ensuring
that in the process of meeting its obligations to Indigenous people,
they are engaged to the maximum extent possible as partners in the design
and delivery of services. [69]

In other parts of
its response to the Council's documents the Government indicates that
while it is prepared to accept that Indigenous culture is diverse and
different, it is not willing to recognise that any distinct cultural rights
flow as a consequence of such acknowledgement. On this point the Government
states:

The Government
agrees that all Australians have the right to enjoy in daily life, a
fundamental equality of rights, opportunities and acceptance of responsibilities.
The Government agrees that the unique status and identities of the Aboriginal
and Torres Strait Islander people as the first people of Australia must
achieve recognition, respect and understanding in the wider community…
The Government recognises that the cultures of Indigenous people are
essential to our distinctive character as a nation…

The Government
is committed to common rights for all Australians. The Government recognises
that many Aboriginal and Torres Strait Islander people have not had
the opportunity to enjoy such equal rights in the past because of events
that have had a profound impact on Indigenous people. The Government
supports additional measures to ensure equality of opportunity where
such measures are necessary to overcome specific disadvantages experienced
by Indigenous people. Neither the Government nor the general community,
however, is prepared to support any action which would entrench additional,
specific or different rights for one part of the community. [70]

It is a combination
of this point (no special treatment) with the one in the previous quote
(concerning the responsibility of Government and control of services)
that is the key to understanding the Government's opposition to self-determination.
They indicate that the Government sees it as unacceptable that self-determination
and the recognition of Indigenous cultural rights could legitimise or
create a transfer of power to Indigenous communities. Conceived of in
this way, self-determination is cast as an adversary and an opponent to
the Government's service delivery role and to the Government's 'practical'
reconciliation approach. Framed in this way, the concept of self-determination
- and the central role that it seeks to ensure for Indigenous peoples
- poses a significant challenge to and could even be seen as the antithesis
of the philosophical underpinnings of the Government's approach.

This is also demonstrated
by examining Indigenous aspirations in the context of the Government's
broader policy framework. In November 2002 the Prime Minister released
an important document identifying the long term strategic goals and approach
of the Government. Titled Strategic leadership for Australia - policy
directions in a complex world, the document identifies what the Government
sees as the key strategic issues facing Australia. Indigenous issues are
not mentioned at all in this framework. Before identifying what the key
strategic directions facing Australia are, however, the document outlines
the philosophical underpinnings of the Government's approach to all policy
making as follows:

I think all governments
need a clear understanding of the values that are important to Australians.
And I think governments must identify national priorities so that they
can develop coherent, long-term programmes based on these values. I
think Australians want from their governments and believe in relation
to themselves four important things. Australians do believe in self-reliance.
We largely want to be self-reliant individuals with an equal measure
of rights and responsibilities. We believe very much in what we call
in our own colloquial way a fair go for all Australians. We do want
to ensure a equality of opportunity and equality of treatment for all
Australians and whatever our starting point, each one of us deserves
an equal chance to succeed and a leg up when we hit troubles. We
believe in pulling together as a community. And this willingness
to unite and help others is ingrained in the Australian culture. And
as a government we have a partnership between the Government and the
community through the social coalition at the heart of many of our policy
decisions. And fourthly we believe in having a go. Australians
do rise to the occasion on the sports field, in the boardrooms, overseas,
indeed everywhere. And calculated risk taking, creativity and having
the courage of your convictions is very much part of the Australian
psyche. We do seek a strong, fair and decent Australia based on these
values. [71]

These values emphasise
sameness, unity or 'one-ness'. They do so at an individual level. There
is no obvious place for recognising cultural difference or for maintaining
cultural practices in a way that differentiates a group from the rest
of society.

b) Domestic
policy debates about the rights agenda, treaty and governance reform

Details of the Government's
approach to self-determination, including this focus on sameness and on
the individual, can also be seen from other documents or statements by
the Government on Indigenous policy released during the year. In particular,
it can be seen from speeches at the ATSIC National Policy Conference,
the ATSIC National Treaty Conference and in the Government's views on
governance and capacity building in Indigenous communities.

The first is the
speech at the ATSIC National Policy Conference by the Minister for Aboriginal
and Torres Strait Islander Affairs in March 2002. On the Indigenous 'rights
agenda' in general he makes the Government's common assertion about self-determination,
namely that:

I know that when
some talk about the rights agenda they are talking about a separate
nation within a nation... [72]

The Minister then
outlines the Government's understanding of self-determination:

Some people use words
like self-determination loosely. I am all for individuals being able to
determine their own destiny. [73]

It is notable that
this description defines self-determination as applying to the individual.
The Minister then returns to the 'threat' of recognising collective rights
and of establishing formal structures for implementing such rights:

[I]n terms of the
Australian community, I am not about separateness, I am about inclusiveness.
Inclusiveness that respects, supports and encourages indigenous cultures
and recognises the special place that indigenous people occupy in this
country as the first Australians.

When some people
talk about rights, they talk about structures, they talk about bureaucracy,
they talk about separate entitlements. That's all well and good. But
it is the debate of the past - modern commentators are challenging those
paradigms.[74]

And he makes clear
that the Government's policy framework is one that starts and ends with
basic citizenship entitlements:

When I visit indigenous
communities people tell me that the important rights for them are:-

• The right to
  good education;
  
• Decent health;
  
• A reasonable
  standard of living in a house that they own;
  
• A safe and
  secure environment for their families;
  
• The right to
  a job.

And the right to:-

• Protect, develop
  and celebrate indigenous culture;
  
• Own land for
  cultural, social and economic purposes;
  
• Contribute
  to the preservation of the environment.

At this conference,
when we are considering future directions for indigenous policy, we
must start with a frank and honest assessment about how we are performing
in delivering those basic rights to Indigenous Australians. [75]

The Minister then
put forward a 'five point plan' for Indigenous policy. In brief, the five
points are:

• shifting the
  emphasis of policy towards individuals and families;
  
• focusing on replacing
  welfare dependency with economic independence;
  
• recognising the
  need for shared responsibility and partnership between Government and
  Indigenous people;
  
• addressing substance
  abuse as a central aspect of improving Indigenous health; and
  
• ensuring that
  mainstream funding caters to Indigenous needs to enable better targeting
  of Indigenous specific resources. [76]

I consider this in
chapter 3 of this Report. At this stage, I note that the Government has
presented these five points as an alternative, and indeed even in opposition,
to self-determination and a rights agenda. Yet it is difficult to comprehend
why exactly these points are perceived by the Government as inconsistent
with self-determination.

The Minister's five
point plan was heavily criticised by Indigenous people during the course
of 2002. In particular, a number of people suggested that it heralded
a return to assimilationist ideology. As a consequence of this, the Minister
sought to clarify the Government's approach at the National Treaty Conference
in October 2002. He explained the Government's views as follows:

Australia can only
claim to be a truly inclusive society when Indigenous Australians have
the freedom to make their own choices and to achieve the same sorts
of opportunities and outcomes as other Australians.

When I have used
the term inclusiveness before, some commentators have confused this
with the old assimilation policies of the past. That is not what I am
saying at all.

The Government
recognises the special place that Indigenous people occupy in this country
as the "first Australians".

We believe that
Indigenous Australians must be able to enjoy the same rights and responsibilities
as other Australians.

Indigenous Australians
should have the opportunity to enjoy their own culture and to share
the benefits and responsibilities that this country offers to all citizens.

By inclusiveness
I mean embracing and celebrating difference because it is those differences
that determine what we are as a nation…[77]'

The Minister then
stated the Government's opposition to the concept of a treaty with Indigenous
people by arguing it 'distracts everybody… from the main game'. [78]
He argues:

We should not allow
ourselves to be distracted by intellectual pursuits or a wish list of
things under the banner of a treaty. I'm talking about reserved Indigenous
seats in parliament, self-government, dedicated shares of tax revenue,
and a financial settlement for colonisation and 200 years of disadvantage.
Widespread support for these concepts from the broad Australian community
is very unlikely.[79]

Specifically on the
issue of self-government, the Minister then states:

The new Canadian
territory of Nunavut is sometimes cited as a possible model for Indigenous
self-government in Australia. I have been to Nunavut and it is worth
noting that Nunavut is not an ethnically-based government. All residents,
both Inuit and non-Inuit, are entitled to vote.[80]

Instead of a treaty
and issues like self-government, the Minister states the Government's
preference for and role in 'fostering a new culture of agreement-making
with Indigenous people that is giving them real influence and control
in the affairs of state that matter to them'.[81]

Agreement-making
is the Government's process for implementing 'shared responsibility and
partnership' with Indigenous peoples. The Minister explained the Government's
approach to agreement-making at the National Treaty Conference as follows:

Agreement-making,
if it is to succeed, should be guided by the following principles:

• Involvement
  of the local Indigenous community in decision-making and determining
  priorities for action;
  
• Shared responsibility
  of parties to the agreement. Without all parties making undertakings,
  results can not be ensured;
  
• Flexibility
  to meet local circumstances;
  
• Focus on outcomes
  with clear benchmarks to measure progress.

We need agreements
that are a two-way undertaking that change the relationship from one
of passive welfare dependency to a much more equal relationship. Yes
- I am talking about empowerment. [82]

Describing agreement-making
as 'the emerging revolution in Indigenous affairs', the Minister describes
Indigenous peoples' attitude to it as follows:

Empowered by clearer
recognition of their basic citizenship rights and seasoned by a generation
of advocacy, Indigenous Australians are marking out new territory in
their efforts to realise their ambition of self-management and self-reliance.
[83]

Notable about this
description is the confinement of Indigenous peoples' aspirations to individual
attributes of self-reliance and self-management, and to the achievement
of citizenship rights.

While no one would
disagree with the Government's commitment to working in partnership with
Indigenous people and focusing on agreement-making, the question that
remains is to determine exactly where the parameters of this process are.
In other words, over what are they prepared to enter into partnership
with Indigenous people and on what terms?

We particularly need
to ask these questions given that we know that the Government are opposed
to negotiating a treaty or framework agreement and are opposed to recognising
self-determination to underpin the relationship with Indigenous people.
Indeed, the answer to this question determines to a large extent whether
their language of empowerment and partnership is merely rhetorical or
has substance.

As I have reported
in my annual Native Title Report for the past few years, the language
of agreement-making has been adopted in the native title arena as a camouflage
for decision-making within a framework that disempowers Indigenous people.
Negotiations take place against the backdrop of a discriminatory native
title regime and with unequal funding for participants in the system to
be represented. This provides an illustration of why we must look behind
the words to see whether the action supports the rhetoric.

There are some signs
that the Government's rhetoric on agreement-making and partnership is
not being matched by action. In their latest annual report to Parliament
ATSIC suggest as such. In the Chairman's report, Geoff Clark notes:

What the Minister
for Indigenous Affairs calls a 'new direction' is in fact a repackaging
of directions that have been pointed out by our community and in a multitude
of reports stretching back many years. There is evidence, moreover, that
government rhetoric is outpacing its ability to deliver. The first report
of progress under the COAG Reconciliation Framework, received in April
2002, was not encouraging.[84]

The conclusion that
I have drawn by examining available materials is that the Government is
reluctant to enter into any relationships or agreement making that will
in any way transform the power relationship with Indigenous people, reduce
the level of government control or result in significant institutional
change.

In responding to
a number of reports the Government has indicated that it views issues
of partnership with Indigenous people as a matter of consultation or participation,
and nothing more. As I quoted earlier, in its response to the reconciliation
documents the Government stated that it is 'concerned that self-determination
implies that a government must in some way relinquish responsibility for
and control over those aspects of well-being over which it rightly has
jurisdiction in common with its responsibility to all Australian citizens'.

The implication of
this is that the Government places boundaries around what is negotiable
through partnerships and agreement-making. It is unacceptable for these
processes to result in any perceived relinquishment of power by government.
In responding to the House of Representatives Standing Committee on Aboriginal
and Torres Strait Islander Affairs inquiry into the needs of urban dwelling
Indigenous people, the Government also noted that while it agrees with
the principle that it is essential to work with local communities to find
solutions to local problems, it has:

reservations about
the Committee's [suggestion] that communities and individuals are generally
better able to develop services to meet the needs of their communities
than governments, or more likely than governments to find the best solutions
to local problems and challenges. There are circumstances where this
is true, but there are also circumstances where it is not. The level
of community capacity is a key influencing factor. [85]

This approach replicates
this concern about Indigenous people taking 'control' of Government processes.
It is a strange view that sets Indigenous people up as competitors to
the Government - where any accommodation of Indigenous aspirations is
seen as giving something up. This is an extremely limited and disrespectful
view of partnership. Both these statements above are of concern as they
imply that the Government may not in fact be prepared to facilitate institutional
change by refocusing service delivery back to communities.

This can also be
seen by examining what the Government did not respond to in the
Commonwealth Grants Commission's report on Indigenous funding need. The
report proposes a wide range of processes for developing Indigenous community
capacity and creating a role for Indigenous communities in controlling
service delivery processes. These conclusions and associated recommendations
are not responded to by the Government, which simply notes at the outset
of its response that 'the CGC report includes findings and makes observations
that go beyond the terms of reference for the inquiry. [The Government's]
response… is limited to those matters that are within the terms of
reference'.[86]

The limitations of
the Government's approach can also be seen from their submission to the
House of Representatives Standing Committee on Aboriginal and Torres Strait
Islander Affairs (HORSCATSIA) inquiry into capacity building in Indigenous
communities. The inquiry, and the Government's submission to it, comes
in the wake of significant debate about Indigenous governance and the
importance of building the capacity of communities to be able to exercise
greater control over their own affairs and to be self-governing.[87]

The term capacity
building, and the related term governance, have become slogans in Indigenous
policy over the past year. In its submission to the House of Representatives
Committee, however, the Government has already begun to co-opt the language
of 'governance' and 'community capacity' to reinforce its current approach
and to set boundaries around the type of partnerships that are acceptable
to it. This is illustrated by its description of the Harvard Project on
American Indian Development in North America.

The Harvard Project
examines self-government in Indian communities and tries to identify what
it is that makes communities successful in overcoming welfare dependency
and poverty. The Project's basic conclusion is that 'genuine self-rule
appears to be a necessary (but not sufficient) condition for economic
success on indigenous lands'.[88] As Stephen Cornell
explains:

We have yet to find
a case of sustained, positive… economic performance where someone
other than the Indian nation is making the major decisions about governmental
design, resource allocations, development strategy, and related matters.
In case after case, we have seen development begin to take hold when Indian
nations move outsiders from decision-making to resource roles and become
primary decision-makers in their own affairs.[89]

The project suggests
that there are five main determinants of good governance in communities:
real self-determination or sovereignty; the building of effective governing
institutions; the existence of a cultural match between these institutions
and Indigenous traditions; long-term strategic thinking; and leadership
from individuals or groups, in the community's interest.

The Government acknowledges
the importance of building Indigenous community capacity in its submission
to the House of Representatives inquiry. It quotes the Harvard Project
on the five determinants of good governance. Interestingly though it alters
the description of the first of these determinants to fit within its alternative
view of what the process should be. Hence, they describe the first determinant
- real self-determination or sovereignty - as:

Real decision-making
power over things such as governmental organisation, development
strategy, dispute resolution, civil affairs etc (in other words, genuine
self-management)…[90]

By contrast, the
authors of the Harvard Project offer the following explanation of this
very point:

The key feature
of self-government is decision-making power. What we mean by self-government
is self-rule or-in the United States, at least-what is commonly referred
to as 'tribal sovereignty': indigenous control over indigenous affairs,
including everything from membership to governmental design to resource
use to regulatory functions to dispute resolution to law-making and
law-enforcement.

One can think of
this in very practical terms: Who is deciding how the housing money
will be spent? Who is deciding whether or not to allow development on
Native land and what the regulatory provisions will be? … If the
answer to such questions is that the indigenous nation is making these
decisions, then we have self-governance. If some other governing body
is making these decisions, we do not have self-governance.

Put slightly differently:
does the indigenous nation have to ask permission to do what it wants
to do, from changing its governing institutions to managing its resources
to changing the law regarding sacred sites on indigenous lands? Self-governance
is absent when and where the answer is yes. Self-governance is in place
when and where the answer is no…

What does 'self-governance'
mean? It is a variable term. In Canada,… the federal government
at times seems to view self-governance as little more than administrative
control: the freedom of indigenous nations to take over day-to-day management
of programs designed and funded by Ottawa or the provinces. Our meaning
is different…

Self-government
may be wide or narrow in scope. As the above discussion of decision-making
power suggests, indigenous nations may be self-governing in some policy
domains but not in others… The relevant question is: What governmental
functions do the relevant indigenous nations control? Self-governance
increases as the scope of indigenous decision-making power widens. As
the scope narrows, self-governance declines.

Self-governing
powers can be shared. Self-governing power is not an all-or-nothing
business, nor does tribal sovereignty mean secession.[91]

ATSIC Chairman Geoff
Clark correctly identifies the key differences between these conditions
and the way that the Government has approached the issue of capacity building
in Australia:

[T]here is evidence
that the Government is using all of these discussions opportunistically
rather than engaging with their substance. Governance becomes 'capacity
building'. Though there is talk of injecting more Indigenous decision-making
into programs, does this genuinely mean passing control to Indigenous
groups? Does it involve the acknowledgement of our jurisdictions in
this country? At first glance some Government policies appear contradictory
and these contradictions can be resolved only by assuming that the Government
has different policies for different groups of Indigenous people - though
it has not really spelt this out.[92]

He also notes:

Current discussions
on governance are a challenge for us and a challenge for governments.
It is now widely recognised that Indigenous programs have perpetuated
dependence, not development. Our communities have had to face arbitrary,
complex, inconsistent and inflexible demands from program providers.
The version of self-determination implemented in Australia has been
a very limited one. These critiques are not new. Overseas experience
and research, principally through the Harvard Project on American Indian
Economic Development in the USA, suggests that there are five determinants
of good governance…

These are political
factors but they produce economic and other positive consequences. The
Harvard research suggests that they are of greater significance than
more obvious considerations such as education, access to resources and
capital or location. There are, however, dangers for us in saying these
things in the current political climate in Australia. HORSCATSIA is
already quoting the Harvard research to the effect that 'access to natural
resources (including land) and finance is less important… than
effective governance'. This may be true, but this is a government operating
out of an ideological straightjacket, which makes a totem of its annual
Budget figure for Indigenous programs and which takes a very incremental
approach to increasing that budget. The legal situation of Native Americans
is also very different to that of Indigenous peoples in Australia. In
the USA the people are recognised as constituting 'domestic dependent
nations'… The invading Europeans in this part of the world did
not extend that status to us. Many of the current Government's limitations
in Indigenous policy stem from its refusal to acknowledge our history
and status. Good governance also requires self-determination, but we
have a government that is uncomfortable even using the word.[93]

Ultimately, Stephen
Cornell suggests that the implications of the Harvard Project's research
for Governments at the federal and state levels are as follows:

What does indigenous
self-governance mean to these governments? Will it be limited to operational
administration? Will it mean non-indigenous governments calling most
of the shots, especially on the "big issues"? Or will it embrace
genuine control over resources; freedom in the development of appropriate
and effective governing institutions; significant and consequential
dispute resolution powers and mechanisms; funding via block grants instead
of program funds (which moves substantive decision-making power into
indigenous hands) until indigenous nations can support themselves; a
partnership - not consultation but a partnership - in major decisions
wherever indigenous interests are at stake; and genuine jurisdictional
power? If we are serious about self-government, then we have to include
these things, and we have to invest in building the institutional capacity
of indigenous nations to back up their power with capable and effective
governing systems that operate under their own control. [94]

This is the true
test of the extent to which the Government is prepared to enter into meaningful
partnership with Indigenous people. There is nothing to suggest that the
Government's view of agreement-making and partnership is prepared to tackle
these issues or those raised by Geoff Clark above. It suggests that its
commitment to self-empowerment, partnership and agreement-making processes
is indeed something less than a commitment to self-determination, genuine
participation and transfer of decision-making and control to Indigenous
communities. The difference is indeed substantive, and not merely rhetorical.

c) International
debates on self-determination

The Government has
also opposed Indigenous self-determination through international negotiations
that have taken place in the inter-sessional, open-ended working group
of the Commission on Human Rights on the Draft Declaration on the Rights
of Indigenous Peoples. [95] Australia's opposition in
debate on self-determination and related concepts is consistent with the
arguments that it relies upon domestically.

This opposition has
been particularly notable due to the leading role that Australia had previously
taken on Indigenous issues in the United Nations. For example, the Government's
support for self-determination in the Working Group on Indigenous Populations
in the early 1990s was a turning point in opening up debate and governmental
support on this issue. In early sessions of the working group on the Draft
Declaration the Government had also provided its support for the recognition
of collective rights of Indigenous peoples. The current Government's position,
and the fierceness of its advocacy, is rightly seen as an abrupt about-face.
Ironically, it is viewed this way at a time when more countries are engaging
constructively and in a supportive manner in the UN debates.

Since 1999, Australia
has been categorised by Indigenous participants at the working group as
one of the most active nations participating in the debates. It is also
categorised as one of a group of only four nations - along with the United
States of America, United Kingdom and Japan - that 'challenge fundamental
principles underlying the Declaration, in particular, the concept of self-determination,
language of indigenous peoples and/or the recognition of collective rights'.
[96]

The Australian intervention
on self-determination at the 1999 session of the working group, for example,
was described as 'the most uncompromising of all State interventions on
self-determination'. [97] In the intervention, Australia
reaffirmed its inability to accept the inclusion of the term self-determination
in the Declaration because for many people it implied the establishment
of separate nations and laws.

A further illustration
of the hardness and inflexibility of this approach was demonstrated with
the repetition of this argument by the Government in each session of the
working group since 1999. During the course of the 1999 session, the Chairperson
of the working group had proposed that future debate on self-determination
should be based on a number of premises which included recognition that
the concerns expressed by some States in relation to secession had been
responded to by assurances by some Indigenous delegations that they did
not want to secede; as well as looking to ensure conformity between the
formulation of the right to self-determination in the Declaration and
the principles which guide the UN such as the UN Charter. [98]
As noted in the previous section, declarations such as the Friendly Relations
Declaration provide a guarantee of territorial integrity if the State
remains representative.

Australia has persisted
in opposing self-determination on the basis of fears of secession when
the Chair of the Working Group has indicated that to do so would be unhelpful
and that the issue had been addressed by Indigenous people. Indigenous
participants, including ATSIC, have condemned the Australian Government's
approach for this inflexibility and lack of good faith in its negotiating
position. [99]

The Government's
position also lends its support to attempts by other countries to limit
the scope of any right of Indigenous people to self-determination. Most
countries participating in the debates on the Draft Declaration have sought
to amend the text of the Draft Declaration to guarantee their territorial
integrity. Countries such as the United States of America and Canada,
for example, have led government initiatives to limit the application
of self-determination for Indigenous peoples to what is termed 'internal'
dimensions, as opposed to 'external' dimensions. While the Government's
position is to oppose recognition of self-determination as well as to
oppose language such as 'Indigenous peoples' - which might invite recognition
of a collective status for Indigenous peoples - its advocacy also gives
credence and support to attempts to limit any recognition of self-determination
to so-called 'internal' dimensions.

d) Summary
- the Government's position on self-determination

In summary, through
domestic policy debates as well as international negotiations we can identify
the following factors which are of relevance to the Government's position
on self-determination.

1. The Government
acknowledges that Indigenous peoples are the first people of Australia
with a unique status and identities.

2. The Government
acknowledges that Indigenous peoples have not always been provided with
equal opportunities in the past and that there is a need for special
measures to overcome any consequent disadvantage that has resulted.

3. The Government
opposes recognising a right of Indigenous peoples to self-determination
in domestic policy formulation as well as in international instruments.

4. Self-determination
is presented as representing the right to unilaterally challenge national
sovereignty (note though that the Government states that this is how
it is 'defined by some' - by whom exactly is never made clear and this
view of 'some' is clearly co-opted to present the Government's view).

5. Self-determination
is presented as implying the possibility of the establishment of a separate
Indigenous state or states within Australia.

6. Self-determination
along with a treaty are seen as promoting division or separateness rather
than inclusiveness (which is defined as 'sameness' and 'the freedom
(for Indigenous peoples) to make their own choices and to achieve the
same sorts of opportunities and outcomes as other Australians').

7. It is implied
that self-determination or recognition of cultural group rights runs
counter to the belief that all Australians should be equally subject
to a common set of laws with no special treatment.

8. While the Government
does not support self-determination it does support Indigenous peoples
having meaningful opportunities to exercise control over aspects of
their own affairs and be engaged to the maximum extent possible as partners
in the design and delivery of services.

9. The opportunity
to exercise control, however, is clearly confined within the context
of citizenship entitlements and the 'same' benefits (or common rights)
that all other Australians are entitled to.

10. The extent
of such control is never specified, though ATSIC is used as an example
of the type of control that is acceptable, and self-government is rejected
as a 'distraction' (note however, the bizarre description of self-government
in Nunavut which raises - solely for the purpose of rejecting it - a
potential view of self-government as an ethnically-based government
which excludes non-Indigenous people from decision-making processes,
including voting - i.e., leaving the necessary implication that Indigenous
self-government could restrict the exercise of the rights of other citizens).

11. The right of
Indigenous peoples' to exercise control over aspects of their lives
is contrasted with the unacceptable contention that self-determination
implies that a government must in some way relinquish responsibility
for and control over those aspects of well-being over which it 'rightly
has jurisdiction'.

12. Agreement-making
is seen as the 'new' way to achieving the acceptable goal of 'active
partnership and consultation with government'.

13. Capacity building
of communities to be self-managing is also identified as an essential
component to this 'new' partnership approach.

14. The boundaries
on what is acceptable to negotiate through agreements as well as the
purpose of capacity building is unclear, but it appears to not extend
to recognition of Indigenous sovereignty and the transfer of institutional
control to Indigenous communities.

15. The Government's
prefers concepts of self-empowerment and responsibility, defined as
individuals being able to 'determine their own destiny'.

16. These values
emphasise sameness, unity or 'one-ness' and do so at an individual level.

17. While not accepting
that there is a right to self-determination, the Government's position
provides support in international negotiations to attempts by other
countries to limit the recognition of self-determination to 'internal'
as opposed to 'external' applications.

Implementing
Indigenous self-determination in Australia

There are a range
of significant differences between the Government's approach to self-determination
and the understanding of it that has developed internationally. Many of
these are masked by subtle uses of language such as commitments to partnership
and Indigenous participation which are made without any real ability for
Indigenous communities to exercise control or to determine priorities
in a meaningful way; preferences for agreement-making rather than treaty;
self-empowerment or self-management rather than self-determination; only
conceiving of self-determination as existing at an individual level and
as a right to exercise control over aspects of Indigenous livelihood;
and so on.

Ultimately, however,
when we scratch beneath the surface of the Government's rhetoric their
approach is exposed as a reductive, minimalist one that is not prepared
to accommodate Indigenous aspirations or recognise any distinct status
of Indigenous people in any meaningful way. The implications of this approach
are significant and cannot be rejected simply as rhetorical or as representing
a preference for a particular type of language.

There are five main
concerns that I have about the Government's approach, when compared to
the fuller understanding of self-determination provided earlier in this
chapter.

The first is the
Government's reliance upon inflammatory, provocative untruths to reject
Indigenous self-determination. This is shown by the suggestion, mysteriously
made 'by some' but clearly endorsed by the Government's uncritical recitation
of it, that self-determination may amount to a unilateral right
to secede from Australia.

As already noted,
there are very strict provisions in international law which guarantee
the territorial integrity of States in all but extreme circumstances.
There is no historical precedent or basis in international law for the
suggestion that a state could be dismembered unilaterally. It is in fact
such an absurd suggestion that the only conclusion that can be drawn from
the Government's reliance upon it is that it is a deliberate untruth aimed
at raising fear and opposition from non-Indigenous people.

The Government has
relied on this particular untruth in responding to the Council for Aboriginal
Reconciliation's report. It has not relied upon it in international negotiations.
In such negotiations, as well as through other domestic processes, it
has instead raised the fear of secession (but not achieved unilaterally).
I noted above that the suggestion that Indigenous peoples in Australia
might secede if accorded a right to self-determination is a-historical
and again does not accord with international provisions relating to self-determination
or guaranteeing territorial integrity. Reliance upon this assertion, as
a way of opposing recognition of Indigenous self-determination outright,
is again a sign of bad faith and constitutes a very simple way of not
engaging with the real issues at stake.

A similar untruth
is the representation of Indigenous aspirations for self-government. As
quoted earlier, the Minister stated that it is 'worth noting' that the
Canadian territory of Nunavut, as a model of self-government, is not an
'ethnically-based' government in which non-Indigenous people can't even
vote. Why does the Minister consider this worth noting? No Indigenous
people in Australia have ever made the suggestion that what they desire
is an ethnically-based government in which no other people may exercise
their basic rights. Again, it is an absurdity which is deliberately placed
on the agenda in order to prevent serious aspirations to be discussed
in a calm, reasonable manner.

Each of these examples
are smokescreens which are quite deliberate in their intent - that is,
at shutting down debate. They indicate that the Government is not prepared
to discuss issues with Indigenous peoples in good faith.

The second main concern
I have about the Government's approach is an overarching one. It is the
failure, or perhaps refusal, of the Government to accept that any consequences
flow from recognising the unique, distinct status of Indigenous peoples
in this country. They state, in their response to the CAR documents, that
the Government 'agrees that the unique status and identities of the Aboriginal
and Torres Strait Islander people as the first people of Australia must
achieve recognition, respect and understanding in the wider community'
and that Indigenous culture is 'essential to our distinctive character
as a nation'. But they reject that this should be reflected through 'additional,
specific or different rights for one part of the community'.

The Government therefore
seeks to limit the recognition of Indigenous peoples' status as if they
were an undifferentiated minority group whose needs can be addressed under
the umbrella of say multiculturalism and by guaranteeing sameness of treatment
or opportunities for the same level of development. Indigenous peoples'
circumstances, however, do not fit comfortably under such a banner. Native
title, land rights and measures such as the Indigenous Land Corporation
which are intended to address the consequences of Indigenous dispossession,
are perfect illustrations of this.

It is a reality of
21st century Australia that Indigenous peoples are different, and that
the expression of their cultures does involve unique forms of protection
that do not apply to other Australians. A more wide-ranging definition
of equality, which focuses on outcomes (such as in terms of equality of
protection of culture) rather than on inputs (such as by purely guaranteeing
equality of opportunities, as if there were a level playing field) is
needed.

An ungrudging, full
recognition of the unique status of Indigenous peoples in Australia would
also create the capacity for a new foundation for the relationship between
Indigenous peoples and the rest of the Australian community. At present,
the relationship with Indigenous people is defined according to little
more than the benevolent intentions of Government to improve the life
conditions of a grossly disadvantaged people group. Such intentions are
easily twisted into resentment and frustration at the amount of money
spent when the desired improvements are not forthcoming. Defining a peoples'
status and rights purely through their experiences of disadvantage is
a dominating and disempowering approach. It is not a respectful basis
for a relationship.

The alternative would
be to acknowledge that Indigenous peoples are the first peoples of this
land, that they maintain distinct cultures and that their survival is
dependent upon protecting those cultures so that they may freely choose
the manner and extent to which they participate in the mainstream society.
The alternative would be to acknowledge that Indigenous peoples can live
in accordance with their culture as a matter of entitlement and of right,
not as a matter of courtesy or tolerance. This was of course the great
potential of native title, as recognised in the Mabo decision.
It made it a legal right, a matter of entitlement, for Indigenous peoples
to live according to their cultures and traditions. And the alternative
would be to recognise that Indigenous peoples have an integral role in
determining and negotiating the priorities for their communities, and
in occupying a central role in decision-making and processes that impact
on their communities.

A third concern with
the Government's approach is a consequence of this lack of recognition
of Indigenous peoples' unique status. It has meant that there is no underlying
basis, no guiding principles, for relations between governments and Indigenous
peoples.

Indigenous people
have on several occasions identified principles that should underpin negotiations
between themselves and government, so that sufficient attention is paid
to their distinct cultural characteristics and unique status in this country.
The Social Justice Package proposal by ATSIC, for example, formulated
Principles for Indigenous social justice and the development of relations
between the Commonwealth Government and Aboriginal and Torres Strait Islander
Peoples, which it saw as an essential commitment from government if
it was to recognise the status of Indigenous peoples in this country.[100]
I recommended in the Social Justice Report 2000, that these principles
be adopted as the framework 'for negotiations about service delivery arrangements,
regional governance and unfinished business'. The current approach, which
has no such underpinning, leaves Indigenous policy formulation to develop
without a consistent focus as to its purpose and without appropriate recognition
of the status of Indigenous peoples.

A fourth and related
concern is that the Government's current framework is oppositional in
its approach and sets up Indigenous people as competitors of government.
There is a fear in the Government's approach that Indigenous people are
going to usurp control and power over matters which they believe more
appropriately belong as responsibilities of government. It is a strange,
indeed almost paranoid, view of partnership. It is also, in my view, an
unrealistic one that does not accurately reflect Indigenous aspirations
nor reflect historical reality.

The past thirty years,
for example, has seen the development of an extensive 'Indigenous organisational
sector' of community controlled organisations as well as national, regional
and local based representation (of which ATSIC is the latest version).
As Will Sanders notes, debates about the relative roles of different forms
of organisation within this sector have:

been somewhat futile
and unproductive. It has been based on a false premise that the categories
'government' and 'Indigenous' organisation are mutually exclusive, and
that the process of demonstrating who best represents Indigenous interests
is one of showing that a particular organisation owes nothing to non-Indigenous
governments, and everything to Indigenous people… If government
is thought of more as a process than as a structure, then there is no
need to categorise organisations as either internal or external to government,
or indeed as either internal or external to the Indigenous community…

The role of the
Indigenous sector in the processes of Australian Government can be seen,
in rather corporatist fashion, as providing some order and stability
to the articulation of Indigenous interests. It can also be seen…
as giving some practical shape to the broad policy idea of self-determination…
One way or the other, the Indigenous sector has now emerged and now
exists as an integral element of the processes of Australian Government.
It is difficult to imagine this development being reversed in the foreseeable
future.[101]

Put differently,
Indigenous peoples' aspirations for appropriate forms of representation
and participation in decision-making that integrally affects their lives
is not essentially about separation or the acquisition of power and control.
It is about:

'interrelationships...
[where the] goal is relations and connections… [T]he aspirations
of indigenous peoples relate to the… need for governing institutions
to exist in such a way as to allow the people to live freely and determine
their own destiny. The determination of Indigenous peoples to change
the situation under which they live today derives from the experience
that the institutions under which they have been forced to live since
they were colonised were established illegitimately and suppress their
ability to live freely and determine their own destiny'.[102]

Underlying the Government's
concern about Indigenous control is a notion of loss of accountability.
This is undoubtedly an extremely difficult issue. Issues of accountability,
however, run two ways - accountability to the funding agency and government,
and accountability to the community who are intended to benefit from the
programme or policy intervention that is made. At present, there is a
real imbalance with limited accountability back to Indigenous communities
(and to the community as a whole).

As I have previously
argued, the current approach to reconciliation lacks adequate benchmarks
and performance monitoring mechanisms. The Government proudly notes it
record level of expenditure as if that were the ends rather than the means.
There is no focus on outcomes and achievements, except in a generalised
and uncoordinated way. I have previously critiqued this in terms of Australia's
obligations to progressively realise economic, social and cultural rights.
The rejection of self-determination contributes to the lack of recognition
by the Government of the need for a serious level of engagement of Indigenous
people in policy formulation. It contributes to a lack of government accountability
for its progress and for its expenditure.

At the same time,
however, I do not advocate that the only form of accountability should
be to the Indigenous community. Central to the principle of self-determination
is a notion of responsibility. Indigenous communities must be accountable
for their decision-making and expenditure. While the focus of this chapter
has necessarily been on government's approach to self-determination, this
is not intended to be at the expense of acknowledging the responsibilities
and duties of self-determining communities. Ultimately, however, concern
about ensuring adequate lines of accountability is not a reason for not
engaging in a substantial process of involving Indigenous people in decision-making
and programme design and management. It is a reason to do so on an agreed
basis, with a clear understanding as to accountability and monitoring
requirements.

The fifth main concern
that I have is that there is no general acceptance by the Government of
the legitimacy of Indigenous peoples being the primary decision makers
on matters that affect their daily lives, and for efforts to build the
capacity of Indigenous communities being directed at this aim.

I have been particularly
fascinated by the Government's focus on 'real' issues as opposed to symbolic
issues, and on their emphasis of providing basic citizenship entitlements.
Earlier in this chapter I quoted the Minister stating that when he visits
Indigenous communities people tell him that the important rights for them
are the right to good education; decent health; a reasonable standard
of living in a house that they own; a safe and secure environment for
their families; the right to a job; and the right to protect, develop
and celebrate indigenous culture; own land for cultural, social and economic
purposes; and contribute to the preservation of the environment.

In 1983, fellow geographer
Mary Hall and I, completed a report titled Aboriginal basic needs,
New South Wales, 1983 - an action benchmark survey. This report was
based on interviews with a random sample of heads of Aboriginal households
across New South Wales. The purpose was to conduct a benchmark survey
of Aboriginal peoples' basic needs, as a baseline from which any gains
in their economic and social quality of life attributable to the then
forthcoming introduction of land rights legislation could be measured.

Throughout this process,
the heads of Aboriginal households across New South Wales identified similar
needs as those suggested by the Minister. Only they did so twenty years
ago. [103] Not much has changed. At the time we
noted that 'poverty and its social consequences for poor people are not
personal attributes, they arise out of the organisation of society. Victim-bashing
is an easier, more comfortable attitude to adopt than hard-headed analysis
of endemic injustice'. [104]

Our working hypotheses
for the survey were:

a) that Aborigines
are experts in the everyday reality of their own situation;

b) that they could
articulate and prioritise their needs, possibly identifying solutions
as well as problems; and

c) that their perceptions
of their needs would result in quantifiable patterns which could form
useful bases for policy making. [105]

Ultimately, the survey
sought to offer benchmarks and touchstones for the question: 'In whose
interests are the decision makers operating?' [106]
These assumptions remain valid today and this question remains the fundamental
one for governments. [107]

As ATSIC has previously
stated, for all policies and programmes 'the values and aspirations that
are meaningful to, and express priorities of, Australia's Indigenous peoples
must be the basis for the policy approaches being taken'. Accordingly,
the question that should be asked in relation to each proposed programme
or policy is, 'will this activity enhance Indigenous peoples' capacity
to achieve what is important to them and, in its development and implementation,
contribute to the empowerment of Indigenous peoples and the achievement
of their objectives and priorities?' [108]

Geoff Clark and Stephen
Cornell were quoted earlier in this chapter as identifying some of the
relevant questions to identify a genuine commitment of governments to
Indigenous self-determination through developing Indigenous governance.
They asked:

• When there is
  talk of injecting more Indigenous decision-making into programs, does
  this genuinely mean passing control to Indigenous groups?

• Does it involve
  the acknowledgement of our jurisdictions in this country?

• Will indigenous
  involvement be limited to operational administration?

• Will it mean
  non-indigenous governments calling most of the shots, especially on
  the 'big issues'?

• Will it embrace
  genuine control over resources; freedom in the development of appropriate
  and effective governing institutions; significant and consequential
  dispute resolution powers and mechanisms; funding via block grants instead
  of program funds; a partnership in major decisions wherever indigenous
  interests are at stake; and genuine jurisdictional power?

The Government's
approach does not reveal a commitment to developing Indigenous capacity
in accordance with these issues.

Overall, the concerns
identified here point to major differences between a rights based approach
to reconciliation and Indigenous policy formulation, and the approach
currently favoured by the Government. There are two broad consequences
that flow from this.

First, a number of
the concerns and contentions that are raised by the Government about self-determination
in both the domestic and international arenas are unjustified. Some are
not supported by developments in international law; others simply lack
reality. Consequently, they have no place as the basis of Indigenous policy
formulation by the Government. In my view, these limitations and gaps
in the Government's approach militate against effective policy and programme
design in Australia. The rejection of self-determination as the basis
of Indigenous policy formulation has very real consequences.

Second, the differences
reveal how the current approach of the Government to Indigenous policy
formulation is introverted and myopic. It is unwilling to build on international
developments or to accept that at core we are dealing with problems in
relation to Indigenous peoples that are being faced globally. Comparing
the underlying basis of the Government's approach to indigenous policy
with international debates about the appropriate standards for addressing
Indigenous issues reveals that the current Australian approach is at the
most conservative end of the spectrum, and lacks imagination and vision.

Conclusion
- Reclaiming self-determination

This chapter has
argued that the Government's opposition to self-determination is not merely
rhetorical. It has consequences and places limitations on the breadth
of enjoyment of rights by Indigenous peoples and on their ability to participate
meaningfully in processes that affect their lives. It is a disheartening
position for two main reasons - first, simply for how minimal and reductive
an approach it is; and second, because of the way that the philosophical
underpinnings of this approach go less challenged than they should.

This Report fulfils
the important function of monitoring government performance on the recognition
of Indigenous human rights. It necessarily focuses on the adequacy of
the approach of Governments, principally the federal Government. This
can, however, obscure other important aims of Indigenous policy. For while
government plays a crucial role in the lives of Indigenous peoples, and
has significant ability to stifle and control Indigenous aspirations,
they do not have the central role in determining Indigenous peoples' destinies.
Indigenous peoples possess that role.

Despite the Government's
current approach, I remain heartened due to the fact that Indigenous peoples
have not sat by while this framework has been implemented or been passive
in their response to it. Developments such as the Lingiari Foundation,
the Lumbu Foundation, the Australian Indigenous Leadership Centre at the
Australian Institute of Aboriginal and Torres Strait Islander Studies
and the National Indigenous Youth Movement of Australia fulfil a vital
role in developing the leadership capacity for communities to be self-determining.

Similarly, communities
all over the country continue to work away at the realisation of their
aspirations and goals with the often limited tools that they have at their
disposal. At the Indigenous governance conference hosted by Reconciliation
Australia, ATSIC and the Department of Multiculturalism, Immigration and
Indigenous Affairs in April 2002 there were numerous examples of communities
working towards achieving the level of control and say over decision-making
that they desire as communities.

Some of these initiatives
seek to utilise existing processes - such as the Murdi Paaki regional
autonomy push utilising the Murdi Paaki ATSIC regional zone as its basis.
Others seek to build from existing structures - such as the Torres Strait
Regional Authority's push for regional governance. Others still have sought
to coordinate the disparate, often inconsistent approaches of different
governments through a centralised community focus - such as the Katherine
region coordinated health care trial. And further communities have simply
decided that existing arrangements do not meet their needs and have sought
to re-impose traditionally based structures on the community - such as
the Ali Curung justice approach or the Cape York Partnerships.

These initiatives
indicate the fact that the Government does not support self-determination
or put into place processes for its realisation is not the end of the
matter. Reduced to their basics, these processes identify flaws or problems
in the existing system and community led ways forward for addressing them.
By focusing on the capacity of the community to resolve and own these
issues, they place the community in a more powerful and central role to
take control of their destinies.

A central factor
to the success of these processes, however, is the level of government
engagement and support for them. When we look to these initiatives within
a framework of self-determination, we can see the inconsistencies and
ad hoc nature of the Government's intervention. For example, why should
the desires and aspirations of the communities of Cape York receive the
level of support that they do from state and federal Governments, including
through stated commitments to streamlining service delivery arrangements
and changing the law to better suit the aspirations of the community,
while the Mutitjulu community, an equally imaginative and determined community
to address the social ills of welfare dependency, languishes in a federal
Government process for a community participation agreement [109]
(and languishes principally because the Government refuses to provide
the type of institutional support it is providing in Cape York)? This
question does not get asked because policy is formulated within a reductive,
individualised framework where comparison and consistency is not emphasised.

In my view, there
has been an illegitimate and quite wrongful assumption made by the Government
that it has the prime role in defining what Indigenous self-determination
is. This is the wrong starting point and it is the primary problem with
the way in which self-determination has been defined over the past thirty
years. It has been accompanied by a reliance of Indigenous communities
on government to implement self-determination.

True self-determination,
though, requires communities to marginalise the role of government in
the functioning of their communities. It is a perversion that governments
continue to exercise almost total control over many Indigenous communities.
It is not a normal functioning of those communities or of government.

We must continue
to challenge the narrowness of the approach of the Government. Communities
must also not be discouraged from seeking their own resolutions to the
problems that they face as communities. We must continue to reclaim self-determination
from the Government.

---

1
Mayor, F, 'Message from the Director-General of UNESCO', in van Walt van
Praag, M, The implementation of the right to self-determination as
a contribution to conflict prevention, UNESCO Centre of Catalonia,
Barcelona, 1999, p14.

2
See Aboriginal and Torres Strait Islander Social Justice Commissioner,
Social Justice Report 2000, Chapter 2. (Herein 'Social Justice
Report 2000'). See also: Aboriginal and Torres Strait Islander Social
Justice Commissioner, An Australian perspective on self-determination,
UN Doc: E/CN.4/2002/WG.15/WP.1, 21 October 2002, available online at:
www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/cf03e35f75a32a36c1256c68004df6ce?Opendocument.

3
Ruddock, P, 'Changing direction', Speech, ATSIC National Policy Conference
- Setting the Agenda, 26 March 2002, www.minister.immi.gov.au/atsia/media/transcripts02/change_dir_0302.htm.s

4
Downer, A, quoted in Forbes, M, 'Downer fears phrase will split Australia',
The Age 22 August 1998.

5
Herron, J, Statement on behalf of the Australian Government at the
17th session of the United Nations Working Group on Indigenous Populations,
Minister for Aboriginal and Torres Strait Islander Affairs, Canberra,
29 July 1999, p7.

6
Sanders, W, Towards an Indigenous order of Australian Government: Rethinking
self-determination as Indigenous affairs policy, Centre for Aboriginal
Economic Policy Research (CAEPR) Paper No. 230/2002, CAEPR, Canberra,
2002, p2.

7
ibid.

8
Council of Australian Governments, National Commitment to improved
outcomes in the delivery of programs and services for Aboriginal peoples
and Torres Strait Islanders, COAG, Perth, 1992, para 4.1.

9
Daes, E, 'Striving for self-determination for Indigenous peoples' in Kly,
Y, and Kly, D (Eds), In pursuit of the right to self-determination,
Clarity Press, Geneva, 2000, p58.

10
For a commentary on these provisions see Aboriginal and Torres Strait
Islander Social Justice Commissioner, Social Justice Report 1999,
HREOC, Sydney, 2000, pp 89-97.

11
Venne, S, Our elders understand our rights: Evolving international
law regarding Indigenous rights, Theytus Books Ltd, Penticton, British
Columbia 1998, p68.

12
General Assembly Resolution 1514 (XV), 14 December 1960.

13
General Assembly Resolution 2625 (XXV), 24 October 1970.

14
Venne, S, op cit, p75.

15
For an overview of these reports see ibid, pp75-82.

16
Critescu, A, The historical and current development of the right to
self-determination on the basis of the Charter of the United Nations and
other instruments adopted by the United Nations organs, with particular
reference to the promotion and protection of human rights and fundamental
freedoms, UN Doc: E/CN.4/Sub.2/L.641, 8 July 1976, para 140; as cited
in ibid, p76.

17
Espiell, H, The right of self-determination - implementation of United
Nations resolutions, UN Doc: E/CN.4/Sub.2/405/Rev.1, para 56; as cited
in ibid, p77.

18
ibid.

19
Capotorti, F, Study on the rights of persons belonging to ethnic, religious
and linguistic minorities, UN Doc: E/CN.4/Sub.2/384/Rev.iii, 1979.

20
Deschenes, J, Promotion, protection and restoration of human rights
at the national, regional and international level - Prevention of discrimination
and protection of minorities, Proposal concerning a definition of the
term 'minority', UN Doc: E/CN.4/Sub.2/1985/31 and Corr.1.

21
Cobo, J.M, Study of the problem of discrimination against indigenous
populations: Volume V, Conclusions, Proposals and Recommendations,
United Nations Geneva 1987, UN Doc: E/CN.4/Sub.2/1986/7, para 362.

22
Deschenes, J, op cit, para 29.

23
Eide, A and Daes, E, Working paper on the relationship and distinction
between the rights of persons belonging to minorities and those of indigenous
peoples, UN Doc: E/CN.4/Sub.2/2000/10, 19 July 2000, para 22.

24
ibid, para 2.

25
ibid, para 18.

26
ibid, para 2.

27
ibid, para 19.

28
ibid, para 2.

29
ibid, para 21.

30
ibid, paras 8-9, emphasis added.

31
ibid, para 10.

32
UNESCO, 'Conclusions and recommendations of the conference' in van Walt
van Praag, M (Ed), The implementation of the right to self-determination
as a contribution to conflict prevention, UNESCO Centre of Catalonia,
Barcelona, 1999, p19.

33
ibid, p28.

34
ibid.

35
Daes, E, 'Striving for self-determination for Indigenous peoples' in Kly,
Y, and Kly, D (Eds), op cit, p58.

36
van Walt van Praag, M (Ed), op cit, p27; Advisory Opinion on Western Sahara
(1975) ICJ 12, pp32-33.

37
Nystad, R, 'Self-determination and the Sami people' in Kly, Y, and Kly,
D (Eds), op cit, p115.

38
van Walt van Praag, M (Ed), op cit, pp27-28.

39
Wilenski, P, Speech on behalf of the Government of Australia to the 44th
session of the United Nations General Assembly 1992, as quoted in Frankovits,
A, 'Towards a mechanism for the realisation of the right to self-determination'
in Kly, Y, and Kly, D (Eds), op cit, p28.

40
Beetham, D, 'Democracy and human rights: contrast and convergence', Speech,
United Nations High Commissioner for Human Rights seminar on the Interdependence
between democracy and human rights, Geneva, 25-26 November 2002, www.unhchr.ch/democracy/,
p8.

41
Social Justice Report 2000, op cit, p12.

42
Kly, Y, 'Exploring the concept of the right to self-determination in international
law and the role of the United Nations' in Kly, Y, and Kly, D (Eds), op
cit, pp43-44.

43
Social Justice Report 2000, op cit, p19.

44
For a discussion of these declarations see Venne, S, op cit, pp73-75.

45
Daes, E, Explanatory note concerning the Draft Declaration on the Rights
of Indigenous Peoples, UN Doc: E/CN.4/Sub.2/1993/26/Add.1, 19 July
1993, para 21.

46
See also van Walt van Praag, M (Ed), op cit, p31.

47
As quoted at the beginning of this section, Article 1 of the international
covenants are similarly qualified, meaning that Indigenous self-determination
can only threaten territorial integrity in the event that the State becomes
unrepresentative.

48
Daes, E, Indigenous peoples and their relationship to land, UN
Doc: E/CN.4/Sub.2/2001/21, 11 June 2001, para 12-13.

49
ibid, para 20.

50
Eide, A, and Daes, E, op cit, para 15.

51
van Walt van Praag, M (Ed), op cit, pp30-31.

52
Lâm, M, At the edge of the State: Indigenous peoples and self-determination,
Transnational Publishers, New York, 2000, pxxiii.

53
Trask, M, 'Future perspectives on the Draft Declaration on the Rights
of Indigenous Peoples: Human rights at the crossroads' (2002) 1 Indigenous
Affairs 20, p20.

54
For case studies of the self-determination claims in the Torres Strait
and central Australia see Aboriginal and Torres Strait Islander Social
Justice Commissioner, An Australian perspective on self-determination,
op cit.

55
van Walt van Praag, M (Ed), op cit, pp31-32.

56
Cobo, J M, op cit, para 401.

57
Council for Aboriginal Reconciliation, Australian Declaration Towards
Reconciliation, online at: www.austlii.edu.au/au/other/IndigLRes/car/2000/12/pg3.htm.

58
Council for Aboriginal Reconciliation, Recognising Aboriginal and Torres
Strait Islander rights - Ways to implement the National Strategy to Recognise
Aboriginal and Torres Strait Islander Rights, CAR Canberra 2000, Online
at: www.austlii.edu.au/au/other/IndigLRes/car/2000/9/.

59
ibid.

60
ibid.

61
ibid.

62
ibid.

63
Council for Aboriginal Reconciliation, Reconciliation - Australia's
challenge, Council for Aboriginal Reconciliation, Canberra 2000, www.austlii.edu.au/au/other/IndigLRes/car/2000/16/text10.htm.

64
Council for Aboriginal Reconciliation, Australian Declaration Towards
Reconciliation, op cit.

65
Howard, J, Reconciliation documents, media release, 11 May 2000.

66
Minister for Aboriginal and Torres Strait Islander Affairs, Response
to the Council for Aboriginal Reconciliation Final report - Reconciliation:
Australia's challenge, Commonwealth Government, Canberra, 2002, p10.

67
ibid.

68
ibid.

69
ibid, pp19-20. Emphasis added.

70
ibid, p17.

71
Howard, J, 'Strategic leadership for Australia - policy directions in
a complex world', Speech, Committee for Economic Development of Australia,
Sydney, 20 November 2002, www.pmc.gov.au/leadership/strategicleadership1.cfm,
p1, italics added.

72
Ruddock, P, 'Changing direction', Speech, ATSIC National Policy Conference
- Setting the Agenda, op cit.

73
ibid.

74
ibid.

75
ibid. Note my comments later in this chapter which relate to the
results of the NSW basic needs survey of 1983 on these issues.

76
ibid.

77
Ruddock, P, Agreement making and sharing common ground, Speech,
ATSIC National Treaty Conference, 29 August 2002, www.minister.immi.gov.au/atsia/media/transcripts02/treaty_conf_0802.htm.

78
ibid.

79
ibid.

80
ibid.

81
ibid.

82
ibid.

83
ibid.

84
Aboriginal and Torres Strait Islander Commission, Annual Report 2001-2002,
ATSIC Canberra 2002, p31.

85
Minister for Aboriginal and Torres Strait Islander Affairs, Government
response to 'We can do it! The needs of urban dwelling Aboriginal and
Torres Strait Islander peoples', Commonwealth Government, Canberra,
2002, p6.

86
Department of Immigration and Multicultural and Indigenous Affairs, Government's
response to the Commonwealth Grants Commission Report on Indigenous Funding
2001, DIMIA, Canberra, 2002, p5.

87
See Social Justice Report 2000, Chapter 4; Aboriginal and Torres
Strait Islander Social Justice Commissioner, Social Justice Report 2001,
HREOC, Sydney, 2001, Chapters 2 and 3 (herein 'Social Justice Report 2001');
Reconciliation Australia, Indigenous Governance Conference, www.reconciliationaustralia.org/graphics/info/publications/governance/speeches.html.

88
Cornell, S, 'The importance and power of Indigenous self-governance: Evidence
from the United States', Speech, Indigenous Governance Conference, 3 April
2002, p1, Online at: www.reconciliationaustralia.org/docs/speeches/governance2002/02_stephen_cornell.doc.

89
ibid, p2.

90
Department of Immigration and Multicultural and Indigenous Affairs, Submission
to the House of Representatives Standing Committee on Aboriginal and Torres
Strait Islander Affairs inquiry into capacity building in Indigenous communities,
DIMIA, Canberra, 2002, p15.

91
Cornell, S, op cit, pp2-3.

92
ATSIC, Annual Report 2001-2002, op cit, p34.

93
ibid, p33.

94
Cornell, S, op cit, p9.

95
See chapter 6 for discussion of the Working Group and the Draft Declaration.

96
International Work Group for Indigenous Affairs (IWGIA), 'Report on the
6th session of the Commission on Human Rights Working Group on the Declaration
on the Rights of Indigenous Peoples' in The Indigenous World 2000-2001,
IWGIA, Copenhagen, 2001, p444. See also Pritchard, S, 'The Draft Declaration
on the Rights of Indigenous Peoples remains on its troubled path through
the UN' in International Work Group for Indigenous Affairs (IWGIA), The
Indigenous World 1999-2000, IWGIA, Copenhagen, 2000, p402.

97
Pritchard, S, Setting international standards - An analysis of the
United Nations Draft Declaration on the Rights of Indigenous Peoples and
the first six sessions of the Commission on Human Rights Working Group,
3rd Edition, ATSIC, Canberra, 2001, p79.

98
Chavez, L, Report of the Working Group established in accordance with
Commission on Human Rights resolution 1995/32, UN Doc: E/CN.4/2000/84,
6 December 1999, para 85.

99
International Work Group for Indigenous Affairs (IWGIA), 'Report on the
6th session of the Commission on Human Rights Working Group on the Declaration
on the Rights of Indigenous Peoples', op cit, p424.

100
ATSIC, Recognition, rights and reform, 'ATSIC Canberra 1995', pp9-10;
See also Social Justice Report 2000, op cit, pp 126-128.
See also Corporate responsibility principles for development on Indigenous
land, developed at a forum hosted by the Social Justice Commissioner in
2002: www.humanrights.gov.au/social_justice/corporateresponsibility/development.html.

101
Sanders, W, op cit, pp8-9.

102
van Walt van Praag, op cit, p30.

103
See for example: Hall, M, and Jonas, W, Almost out of sight, almost
out of mind - Aboriginal reports of Aboriginal basic needs, New South
Wales 1983, University of Newcastle, Newcastle Australia 1985, Appendix
3 - Perceived needs, pp382-396.

104
ibid, p357.

105
ibid, p7.

106
ibid, p361.

107
It is notable that in response to one of the survey's questions of 'who
is responsible for meeting your needs?' the top ranking response in all
areas of the state was seeing Aborigines and the Government together as
responsible: ibid, p330.

108
ATSIC, Directions for change, ATSIC, Canberra, 2001, p1.

109
The problems of the community participation agreement process are discussed
in chapter 3 on reconciliation.

19
March 2003.