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Ridgeway, Aden --- "Address to the UN Human Rights Commission" [2001] AUIndigLawRpr 9; (2001) 6(1) Australian Indigenous Law Reporter 97

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Address to the UN Human Rights Commission

Senator Aden Ridgeway

Geneva

26 March, 2001

Earlier this year, Senator Aden Ridgeway was invited by the United Nations (UN) High Commissioner on Human Rights to address the UN Human Rights Commission in Geneva. The Commission consists of representatives from its 53 member governments, and each year it holds a ‘Special Debate’ on a pertinent theme.

Senator Ridgeway was one of five international panellists that spoke on the theme of ‘tolerance and respect’, its relation to social exclusion, participation and empowerment and how political and other forms of participation could promote tolerance and respect.

Opening remarks

I have been reminded that I follow in the footsteps of many great Indigenous leaders who have attempted to persuade the international community to act in the spirit of truth and justice.

As far back as 1926, a revered Haudenosaunee Chief, Deskaheh of the Cayuga, used his life’s energy to try to persuade the League of Nations to take action to ensure the treaties over his territory were honoured. The League did not act — the treaties are still being broken. The Chief returned home to die shortly afterwards.

The world’s Indigenous Peoples have not gone away, and our problems remain outstanding.

I hope that your ears are more open now than most of the international leaders of 1926.

Tolerance and respect — Australia’s reconciliation process

Tolerance and respect requires understanding and acceptance. These qualities in turn require people to be willing to learn and be prepared to challenge the stereotypes and prejudices that have been handed down over generations.

In Australia, the majority of the population has indicated their willingness to start afresh in their relationship with Indigenous Australians, and to re-examine the history of our shared country since colonisation by the British over two centuries ago.

The concept of reconciliation has been well and truly embraced in Australia after a decade of work by the Council for Aboriginal Reconciliation, which was established by the national parliament in 1991.

Part of that journey was to consult our ancestors and the forefathers of Federation, to speak to them to help us in dealing with present day dilemmas.

However, when it comes to the harder issues associated with recognising and giving effect to the broader and fundamental implications of reconciliation, only a minority of Australians are prepared to countenance real equality which would include:

• the negotiation of a formal agreement or treaty between the government and Indigenous Peoples to resolve a range of outstanding matters; and
• the recognition and protection of other fundamental Indigenous rights relating to land and culture in our laws and our Constitution.

In other words, non-Indigenous Australians are keen to embrace the rhetoric of reconciliation, so long as it doesn’t require them to take effective action to share the country’s abundant resources and political power. Most are not prepared to make any significant adjustments in how they live their lives, or how they see their future.

Few are prepared to really look within themselves to challenge their beliefs and values, for fear of what they might find and for fear of what they think they might lose.

That fear was most evident when the High Court of Australia overturned the legal doctrine of terra nullius in the Mabo decision of 1992. Up until that time, the courts and parliaments of Australia had constructed a legal system based on the fiction that Australia was an empty continent devoid of a settled population when the British arrived in 1788.

The court’s finding that Aboriginal people and Torres Strait Islanders were the original inhabitants, with developed laws, languages and social constructs — in other words, with territorial rights — rocked the foundations of Australian law.

It created the potential for a profound re-evaluation of legal and political relationships between different peoples, territories and laws, which is still unfolding today.

Whilst ‘mainstream’ Australians might regard the Mabo decision and the Native Title Act as the instruments to unlock the future for Indigenous Peoples in Australia, the way the reconciliation process is unfolding in our country shows that we are at best, only halfway to undoing the effects of the doctrine of terra nullius.

This stems from the fact that on the one hand, the court recognised the existence of cohesive Indigenous societies and cultures and their relationships to land and territory. But on the other, it refused to recognise the legal status of the associated political institutions, which provided for effective fully-informed decision-making processes.

The terra nullius of the mind — Australia’s ongoing challenge

Consequently, the terra nullius of the Australian mind is alive and well, and nothing other than real political leadership and effective community education is likely to change that.

Whilst the Council for Aboriginal Reconciliation’s decade of awareness raising and grassroots campaigning is reaping rewards, advancements in terms of political leadership have not kept pace.

Some would argue that Australia is turning away from its fundamental values of equality and social justice for all, especially when it comes to its own Indigenous peoples, immigrants and refugees.

Australia’s record in relation to the following issues is further testament to just how much more we need to do to overcome racism:

• The Stolen Generations — the imperative of full reparations, starting with a formal apology by the Australian Parliament and the establishment of a reparations tribunal to ensure a humane and just response is delivered to the individuals, families and communities affected;
• Mandatory sentencing laws — which the Australian Parliament should immediately overturn on the basis that they breach our obligations under several international treaties to which we are a party; and
• Aboriginal deaths in custody – it is simply unacceptable in a first world country like Australia, that one in every five inmates in our gaols is Indigenous – or that nationally, the rates of Indigenous imprisonment are 15 times higher than for the non-Indigenous population.

Recognition of rights is fundamental to achieving ‘tolerance and respect’

Indigenous Peoples have clearly articulated what they consider to be their rights:

• at the international level, in the Draft Declaration on the Rights of Indigenous Peoples, and
• at the national level in Australia through negotiations with the political parties, and through their own representative bodies such as ATSIC, Aboriginal Land Councils, Aboriginal Legal Services and so on.

These rights include, but are not limited to:

• our right to self-determination — to control decision-making processes that affect us, so we can make informed decisions;
• territorial rights to our land, waters and seas and the resources therein (as recognised by Madame Erica Daes in her recent paper on this topic [E/CN.4/Sub.2/2000/25]); and
• our rights to culture and heritage, including our cultural and intellectual property rights, which are fundamental to the perpetuation of our identities as Indigenous peoples.

These rights are NOT basic citizenship rights. They are in addition to rights to housing, employment, health services, education and so on.

Our rights as Indigenous peoples must be carefully and thoughtfully interwoven with our basic citizenship rights to ensure that those qualities that distinguish us as ‘Indigenous’ and give us distinct identities and cultures, are not destroyed or marginalised.

It is getting this balance right that is proving so hard in Australia.

Citizenship rights AND Indigenous rights — striking the balance

Few non-Indigenous Australians would dispute Indigenous peoples’ claims to citizenship rights.

However, Indigenous Australians did not have citizenship rights as late as 1967. It is only as a result of a national referendum in that year that we have been counted in our national census, and able to be specifically included in national legislation.

It is therefore ONLY in current living memory that Indigenous Australians were acknowledged and recognised as legally equal.

Even in my home state of New South Wales, up until 1972, it was still possible for school principals to prevent children from attending school on the basis of race.

We may now have a Racial Discrimination Act and a Human Rights Commission, but as CERD recently pointed out, ‘there is no entrenched guarantee against racial discrimination in Australian law’.

Similarly, Indigenous Australians are yet to be specifically referred to in the Australian Constitution.

Nevertheless, the objective of securing citizenship rights has been one where there have been achievements, from:

• full voting rights in all elections,
• entitlements to welfare benefits, and
• support for the delivery of services by Indigenous organisations, through to
• the adaptation of programs in some circumstances such as school curricula and bilingual education, and
• the development of special work programs as substitutes for payment of unemployment benefits.

Recognising Indigenous rights — the role of governments

Indigenous peoples in Australia would argue, nevertheless, that ‘mainstream’ programs and service providers have two obligations to Indigenous peoples:

(1) to ensure that Indigenous peoples can access their rights; and
(2) to adapt their program policies and administrative requirements to accommodate the legitimate values, beliefs and lifestyles of their Indigenous clients.

However, governments and their agencies have failed to adopt or implement a consistent and supportive policy to meet these basic obligations. There is a persistent reluctance to require departments and agencies to implement a supportive policy approach, which is even more marked at the state level in Australia.

The role of self-determination

There is a role for self-determination in achieving tolerance and respect. For example, the Aboriginal and Torres Strait Islander Commission (ATSIC) is the peak national body representing Indigenous Australians. It is controlled by a popularly elected Indigenous board, and it is responsible for half of the Australian Government’s $2.2 billion annual expenditure on Indigenous programs.

However, ATSIC is very dissatisfied with the degree of control and effective decision-making it is able to exercise in reality.

Earlier this month ATSIC called on the government to fundamentally re-orient the manner in which money is allocated for expenditure on Indigenous peoples in the budgetary process.

This document called on the government to:

• Cease to require ATSIC to expend funds on basic citizenship rights, and reserve all funds for pursuing the special entitlements of Indigenous peoples as Australia’s first peoples.
• Base all Government policy on the values and aspirations which are meaningful to, and express the priorities of, Indigenous peoples.
• Apply the principles of ‘recognition, equity and respect’ as the first test to any policy or program proposed by government for Indigenous peoples.

In other words, there is an over-riding need for government to show that it can support the priorities determined by Indigenous representatives, even ahead of its own preferred program proposals.

• What governments and funding agencies need to do is facilitate action by Indigenous peoples to exercise their rights and to assert them in everyday practical situations that Indigenous peoples consider important.
• Facilitating that action involves:
• the funding of resources necessary to effective action over time, and
• implementing the law and policy changes that will support and advance Indigenous peoples and their aspirations.

In the case of Australia, ATSIC has identified two priority issues that require urgent attention:

(1) The provision of additional support for the pursuit of land rights through the Native Title Act — an Act which itself must be amended to remove its racially discriminatory provisions which limit Indigenous rights to negotiate over our land; and
(2) The recognition and protection of Indigenous cultures and heritage in effective and comprehensive legislation.

Other forms of participation and empowerment

Other forms of participation and empowerment could be achieved through:

(1) political representation, including dedicated seats in Parliament,
(2) constitutional recognition,
(3) the enactment of a bill of rights, defining the rights and responsibilities of all citizens. It could be a mechanism to provide:

(4) economic empowerment initiatives to replace welfare dependency.

1. Political Representation – Dedicated Seats in Parliament

Aboriginal and Torres Strait Islanders already have a foothold in local government in Australia, but they are yet to really engage in politics at the State and Federal level in significant numbers.

In the Australian political context, it is very important that the two major political parties select Indigenous candidates for preselection in safe seats. This requires political parties firstly to:

• be able to attract Indigenous people to their party and
• have something to offer them in return for their involvement.

Australia, and indeed other countries could consider creating dedicated seats or quota systems for Indigenous peoples in their parliaments and governments.

There are instructive international models, such as New Zealand/Aotearoa, which we could further explore and debate.

2. Constitutional recognition of Aboriginal People and Torres Strait Islanders as First Nation Peoples (with the right to self-determination).

3. Bill of Rights

This could define (in either legislation or the Constitution) the rights and responsibilities of all Australian citizens, particularly Indigenous Australians.

It could be a mechanism to provide:

• protection against racial discrimination, as there is currently no entrenched mechanism to do so; and
• a defined power for the Commonwealth to make laws for the benefit of Indigenous peoples.

4. Economic Empowerment

The Australian Government needs to do much more to correct the legacies of the past — and to enable Indigenous Australians to believe they are equal with all other Australians when it comes to employment opportunities, applying for a bank loan or undertaking a commercial venture.

The Council for Reconciliation put considerable effort into the development of four strategies for all governments of Australia to endorse and implement in their laws and policies. Together, these strategies constitute a Roadmap for Reconciliation.

They provide the framework for governments, business, communities and our schools to work together to make reconciliation a reality.

Two of the strategies are directly relevant to the goals of assisting and enhancing Aboriginal and Torres Strait Islander self-management and economic self-sufficiency.

The strategies outline what governments can do to affect positive change in relation to the following key areas:

• education and training;
• employment;
• access to capital;
• access to markets and trade; and
• partnerships and joint ventures with business.

Every single one of these key actions requires government involvement and leadership. Some also depend on the business and corporate sector opening up their doors and being prepared to work with Indigenous peoples in partnership.

And there are real examples of the private sector recognising that these kinds of partnership make good business sense, especially in regional and remote Australia.

Unfortunately, the government has not made any response to the strategies contained in the Roadmap, even though the documents were formally presented almost 12 months ago.

Other initiatives and recommendations

Since the 1978 Racial Discrimination Conference, the UN has taken note of the particular effect of racism, racial discrimination and racial intolerance on Indigenous Peoples. The establishment by ECOSOC of a Permanent Forum for Indigenous Peoples is a further indication of this recognition.

Draft Declaration and Program of Action for Durban

In February of this year, the UN held an ‘Indigenous Peoples and Racism’ Regional Meeting, in Sydney, Australia.

The report from the Sydney meeting represents the voice of Indigenous peoples from Australia, New Zealand Aotearoa, Canada, Hawaii and the United States who attended the proceedings.

On this occasion, I would call for the conclusions and recommendations of the Sydney satellite meeting to be taken into account and incorporated into the provisions relating to Indigenous Peoples in the Draft Declaration and Programme of Action of the World Conference in Durban (A/CONF.189/WG.1/3).

I note the reference to Indigenous Peoples in paragraph 10 of the Draft Declaration for Durban. Might I suggest and recommend that this article be amended to reflect the recognition that Indigenous Peoples have suffered and continue to suffer extreme and systemic levels of racism and racial discrimination.

I further suggest and recommend that the Programme of Action for the Durban Conference should be amended (Part XV on Indigenous Issues) to call for:

• the adoption of the Draft Declaration on the Rights of Indigenous Peoples (presently being considered by the UN Commission on Human Rights Working Group) to be adopted before the end of the International Decade of the World’s Indigenous Peoples in 2004, and for
• the recently created Permanent Forum for Indigenous Peoples to be expeditiously activated and adequately resourced.

I believe that these suggestions will help to make the Durban Conference more action-oriented.

International Conference on Indigenous Peoples

I welcome the recommendation in the Draft Declaration for Durban (para 79) to convene an International Conference on Indigenous Peoples at the end of the International Decade of the World’s Indigenous Peoples in 2004, as one of the remedies against racism. Such a conference would benefit considerably from a series of regional Indigenous conferences as part of the preparatory process.

Indigenous perspectives should form the core of such a conference. The conference would also benefit from representative Indigenous keynote speakers and participants drawn from around the world.

Special Rapporteur on Indigenous Issues

I welcome the suggestion that the Commission may be asked to consider the establishment of a Special Rapporteur on Indigenous Issues.

The establishment of such a position would indicate the Commission’s commitment to progress Indigenous peoples’ concerns and to ensure that we too can freely enjoy our fundamental human rights.

Conclusion

Finally, the question of racism has perhaps been the ugliest phenomena to ever visit our societies; it incited the drawing of the colour-line in the ‘White Australia’ policy, drove people from their traditional lands and disenfranchised people from their children, culture and future.

Part of the challenge in having rationality in a race debate is to build relations across the dividing line so that full human rights and substantive equality are restored. It also requires that we recognise that modern forms of racism thrive on its denial under the guise of ‘political correctness’.

It is further necessary that we challenge our history and the idea that we should fit into the straight jacket of a mono-cultural society. The 21st century is not a place for a contest about our various depictions of the past or about winners. It is a place that must engage the past in order to work out our future.

We must also vehemently challenge those who seek to enlist the politics of blame, revenge and resentment when asserting the rock-solid nature of a colonial inheritance and privilege.

At the same time, though, there must be recognition that where there is a growing under-class, overcoming their disadvantage is crucial to avoiding the compounding effects of racism for Indigenous peoples. Backlash itself, is the product of inequity.

By recognising and implementing the demands for effective decision-making control, Indigenous individuals and communities will be able to move away from dependency and its negative economic, cultural, social and psychological consequences.

This would foster greater self-confidence and enable Indigenous peoples to demonstrate their own capabilities to the broader community.

Individual and community pride and achievement would assist in laying the foundations for mutual respect to flourish. Without mutual respect amongst all members of our respective countries, governments cannot manufacture tolerance and social harmony.

In closing, the process of reconciliation in Australia is very much about dealing with ‘unfinished business’ and what is crucial to defeating racism is promising that the past does not live in the present on access to the full range of rights. Nevertheless, if reconciliation is going to have true meaning in any country, it must be action-oriented and it must become the vehicle for real change in attitudes and actions — not just something that is at best aspirational.

It is only when the building blocks of the future are strengthened, re-oriented and re-aligned, that we can look forward to achieving lasting and effective solutions to what will otherwise become self-perpetuating human tragedies.

Thank you.