Indigenous Peoples:
Issues in
International and Australian Law.
Martin Place Papers No. 6, 2007
International Law Association
(Australian Branch)
Papers presented at a series of three seminars held between 2002 and 2004 in
association with the Human Rights and Equal Opportunity Commission.
Edited by Greg
Marks.
ISSN 0728-7445
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TABLE OF CONTENTS
About the International Law Association
FOREWORD
PREFACE
SEMINAR ONE: A NATIONAL TREATY WITH INDIGENOUS AUSTRALIANS – THE INTERNATIONAL LAW PERSPECTIVE
- Dr William Jonas - Native Title and the Treaty Dialogue
- Professor Ivan Shearer - A Treaty between the Aboriginal Peoples of Australia and the Government of Australia from an International Law Perspective
- The Hon John von Doussa - Introductory remarks
- Dr William Jonas AM - The Recognition of Aboriginal Customary Law
- Megan Davis - The Recognition of Aboriginal Customary Law and International Law developments.
SEMINAR THREE – INDIGENOUS PEOPLES AND SOVEREIGNTY
- Greg Marks - Introductory remarks
- Tom Calma - Indigenous peoples and the right to self-determination
- David Ritter - The Return of the Zombie: Terra Nullius in 2004
Foreword
I am pleased to be able to introduce these papers on an enduringly
important topic for all Australians.
It is also pleasing that this
publication marks the continuation of the Martin Place Papers series after a
pause of several years. The series was the brainchild of the late Professor
David Johnson, then Challis Professor of International Law, University of
Sydney. It serves to preserve occasional papers on a variety of topics,
presented at meetings sponsored by the Australian Branch of the International
Law Association, which might otherwise not be published, at least not in the
form in which they were presented.
Mr Greg Marks is to be congratulated
on collecting and editing the papers that follow. He was also responsible for
instigating the seminars at which they were presented. His leadership in matters
concerning indigenous rights in national and international law has been
appropriately recognised in his election, at the Biennial Conference of the
International Law Association, held in Toronto, Canada, in June 2006 to the
position of Rapporteur of the Committee on the Rights of Indigenous
Peoples.
Ivan Shearer
President, Australian
Branch,
International Law Association
14 August 2006
Preface
The accommodation of rights and interests between the Indigenous
inhabitants of Australia, the Aboriginal and Torres Strait Islander peoples, and
the descendants of the European and other settlers, remains a priority concern
for the Australian legal and political system.
The rights of Indigenous
peoples have been recognised in international law and practice. Since
international law has significant force in the Australian legal framework, it is
clear that international norms, particularly those concerning human rights, are
highly relevant to the legal and political situation of Australia’s
Indigenous peoples. Since World War II Indigenous peoples around the world have
increasingly turned to international forums for clarification, confirmation and
development of their rights. This reflects in part the long standing refusal of
Indigenous peoples to completely surrender their autonomy to the nation states
in which they find themselves. It also reflects frustration on the part of
Indigenous peoples at the intransigence of nation states in recognising on-going
Indigenous autonomy in respect their lands and territories, resources, and law
and custom.
Given the interrelation of domestic and international
considerations in respect of Indigenous peoples, the Australian Branch of the
International Law Association (ILA) has established an Indigenous Rights
Committee. This Committee collaborated with the Human Rights and Equal
Opportunity Commission (HREOC) to convene a series of three seminars on topics
concerning the international law implications of Indigenous issues. The seminars
covered the proposal for a treaty with Indigenous Australians, the role and
recognition of customary Indigenous law, and the question of sovereignty. The
support of the Human Rights and Equal Opportunity Commission in co-sponsoring
the seminars is greatly appreciated
The papers presented at these
seminars are brought together in this edition of the Martin Place Papers, an
occasional series published by the ILA (Australian Branch). The papers are
presented largely as delivered, rather than as formal academic articles. It is
hoped that this approach will retain the directness and vitality of the
presentations. It does mean, however, that the articles are not necessarily
fully referenced nor consistent in citation systems.
The seminars, and
the production of this Martin Place Paper, would not have been possible without
the initiative and support of Margaret Brewster, President Emeritus of the
Australian Branch of the ILA. Margaret saw the importance of bringing Indigenous
rights within the focus of the ILA and has worked hard to achieve this. The
current President, Professor Ivan Shearer, has fully supported this development,
as well as presenting a paper at the first of the seminars.
Greg
Marks
Convenor
Indigenous Rights Committee
