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Aboriginals of Australia: Statement at the WGIP

Les Malezer, FAIRA

23 July 2004 - We take this opportunity to give our strongest support to this example of high utilization of expertise from human rights experts and the authorities of Indigenous Peoples, and to the pooling of knowledge and ideas. We are certain this is the intended approach in the International Decade of the World's Indigenous Peoples' Program of Action which gives emphasis to our participation at all levels of management and decision-making.

There is a very strong link between the colonization of peoples, the assertion of racial superiority, and the exploitation of the cultural heritage of Indigenous Peoples. We could assert, for example, that doctrines of imperialism and international supremacy, which preceded the Second World War, still survive intact today in the management of Indigenous Peoples' cultural heritage.

A common interpretation of Indigenous cultural heritage, as seen by States, might be fascination over the ancient arts, religious practices or manufactured relics. The living and dynamic nature of our cultures is not appreciated. This was expressed succinctly during this meeting by one participant who said our past is 'something we push ahead of ourselves, not drag behind'. We are who we are, by defining who we have been. Do we not seem to have the right, for example, to value our contemporary culture and history noting that western culture can develop also cultural concepts as living human treasures, ambassadors, or even knighthood? I am trying to point out that for Indigenous Peoples, 'culture' is unfortunately more limited to those things which make us curiosities, rather than those things which make us peoples.

Having said that, Mr. Chairman, it is also important to point out that Indigenous Peoples carry most of the cultural diversity in the world, such as over 90 of the world's languages. Indigenous Peoples, according to UNESCO, hold a significant place in the planetary cultural landscape and are representative of cultural diversity. Indigenous Peoples personify a global vision of the world and of humankind that continues to be intimately linked to nature and the earth to which we all belong.

Western definition and control of cultural heritage also leads to conflicts. As we try and gather the ancestral remains of our Aboriginal Peoples from the museums of the United Kingdom we are trapped in idiotic debate over scientific interest and propriety interest. Three years after starting a government review over the repatriation of our ancestral remains the United Kingdom is still undecided on policy and law. They are concerned that if they give Indigenous remains back to Indigenous Peoples they will have to return the Elgin Marbles back to the Greek peoples, or return their Egyptian treasures. They have now made a stupid arrangement with the Australian Government to remove Indigenous Peoples from any responsibility or negotiations about our ancestral remains. Why is the Australian Government sponsoring the Aboriginal Art collection outside (for which we thank them very much) yet refusing to assist Aboriginal people to attend this Working Group meeting, not attending the meeting themselves, and refusing to give contributions to the Voluntary Fund. Is this not imperialism at its highest? Who gets to display our culture?

Mr. Chairperson, I end my general statements by pointing out the national legislation to protect Aboriginal cultural heritage is the product of the mining and extractive industries. The most important role of the national laws, in Australia, are not to protect our rights but to ensure that our interests do not prevent mining or extractive industry on our lands, waters and sacred sites. One of the strongest methods of control is that the government defines who are the traditional custodians, what is 'heritage' and what importance or significance that heritage holds.

We turn our attention to the recommendations in the expert paper and strongly advocate the recommendations, especially in Paragraph 31, which proposes that the guidelines be developed in the form of a legal instrument. To this purpose we reiterate our support for the 1995 report by the Special Rapporteur for the protection of the heritage of Indigenous Peoples (E/CN.4/Sub.2/1995/26). The report has languished for nine years without further action, yet almost all the information remains relevant today. The only change, as we note, is that WIPO now accepts a role in the protection of Indigenous cultural heritage, for which we are grateful and encouraged.

The justification for an international binding instrument is the continuing procrastination by States over Indigenous rights of ownership and control, and definitions of Indigenous heritage. For thirty years our organization has been advocating regional and national heritage legislation in Australia. We have managed to influence six laws, three at the national level (in 1985, 1993, 1998) and two at the regional level (in 1984 and 2004), but still cannot accept these laws meet more than the most basic principles set out in the Special Rapporteur's 1995 report. It is a human rights issue, that Indigenous Peoples be able to end the ongoing exploitation and loss and destruction of our cultural heritage. We hope that all Indigenous delegates to this session will, at the minimum, support timely development and implementation of an international instrument for our heritage protection.

We conclude, Mr. Chairman, but confirming our support for the working paper and its recommendations, and again thanking Mr. Yokota and the Saami Council for their presentation of the issues.

The 1993 Vienna World Conference on Human Rights recommended that States should, in accordance with international law, take concerted positive steps to ensure respect for all human rights and fundamental freedoms of indigenous people, on the basis of equality and non-discrimination, and recognize the value and diversity of their distinct identities, cultures and social organization;

In doing so, the World Conference urged States to ensure the full and free participation of Indigenous Peoples in all aspects of society, in particular in matters of concern to them. This call was repeated at the World Conference on Racism in Year 2000, when the Durban Declaration urged States to guarantee Indigenous Peoples the exercise of their human rights and fundamental freedoms on the basis of equality, non-discrimination and full and free participation in all areas of society, in particular in matters affecting or concerning their interests;

The General Assembly has affirmed this principle in establishing that an objective of the Decade is the promotion and protection of the rights of Indigenous Peoples and their empowerment to make choices which enable them to retain their cultural identity while participating in political, economic and social life, with full respect for their cultural values, languages, traditions and forms of social organization;

The General Assembly called upon the States to seek means, in consultation with Indigenous Peoples, of giving Indigenous Peoples greater responsibility for their own affairs and an effective voice in decisions on matters that affect them:

The meaning of 'participation' and 'responsibility' was clearly articulated by the Committee on the Elimination of All Forms of Racial Discrimination (CERD) in 1997. In considering the rights of Indigenous Peoples under the International Convention on the Elimination of All Forms of Racial Discrimination, CERD has called upon State parties to ensure that members of Indigenous Peoples have equal rights in respect of effective participation in public life and to ensure that no decisions directly relating to Indigenous Peoples' rights and interests are taken without their informed consent;

In formulating that recommendation the Committee took account of the continued discrimination against the Indigenous Peoples: The Committee is conscious of the fact that in many regions of the world indigenous peoples have been, and are still being, discriminated against and deprived of their human rights and fundamental freedoms and in particular that they have lost their land and resources to colonists, commercial companies and State enterprises. Consequently, the preservation of their culture and their historical identity has been and still is jeopardized. [CERD General Recommendation XXIII, 1997.

In 1973 the Government of Australia appointed Justice Woodward to hold a Commission of Inquiry into appropriate ways to recognize Aboriginal land rights. Justice Woodward reported that the aims of land rights were the doing of simple justice to a people who have been deprived of their land without their consent and without compensation. He recommended that these aims could be best achieved by preserving and strengthening all Aboriginal interests in land and rights over land, and ensuring that none of these interests or rights are further whittled away without consent. In reaching these conclusions he had taken full account of the arguments put forward by vested interests who opposed the granting of land rights, prominently the mining and resources industry. He said 'I believe that to deny Aborigines the right to prevent mining on their land is to deny the reality of their land rights.'

Woodward insisted that mining and other development on Aboriginal land should proceed only with the consent of the Aboriginal landowners. Woodward considered that the right to withhold consent might be over-ridden by the government if the national interest required it, but he specifically said that such an issue 'would not be determined on a mere balance of convenience or desirability but only a matter of necessity'.

Under government legislation the responsibility for protection of the land rights of traditional owners in the Northern Territory is vested in three regional land councils. Under law the Land Councils must ensure that the right of traditional owners to control access to Aboriginal land is maintained and that native title rights and interests are enhanced and protected:

The Land Councils must ensure that Aboriginal people are fully informed and empowered to take control of decisions regarding exploration and mining on their lands or waters.

The overriding statutory obligation on the land councils to consult traditional owners, and act on their instructions, on the basis of group consent, ensures absolute validity of traditional landowners' prior and informed consent.

Further evidence of the consciousness of the government of Australia of the human rights standards applying to the freedoms of the Aboriginal Peoples and Torres Strait Islander Peoples in Australia lies in the legislation enacted in 1999 for a national Indigenous commission. The first objective of the Aboriginal and Torres Strait Islander Commission Act is (in recognition of the past dispossession and dispersal of the Aboriginal and Torres Strait Islander peoples and their present disadvantaged position in Australian society) to ensure MAXIMUM PARTICIPATION of Aboriginal persons and Torres Strait Islanders in the formulation and implementation of government policies that affect them.

Mr. Chairman, we call upon the Working Group, the Sub-Commission on the Promotion and Protection of Human Rights and the Commission on Human Rights to affirm the right of Indigenous Peoples to free, prior and informed consent, and call upon States to ensure that this right is embodied in national constitutions and statutory law.

Contact: FOUNDATION FOR ABORIGINAL AND ISLANDER RESEARCH ACTION PO Box 8402. Woolloongabba. Old. 4102. AUSTRALIA Telephone: +61 7 33914677; Facsimile: +61 7 33914551 les.malezer@faira.org.au

Source: UNPO

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