HREOC Social Justice Report 2002: Self-determination

Social Justice Report 2002

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

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Aboriginal & Torres Strait Islander Social Justice navigation

Social Justice Report 2002

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

Self-determination and the ‘politics of symbolism’

(Re-)Defining self-determination

The Government’s approach to self-determination

Implementing Indigenous self-determination in Australia

Conclusion – Reclaiming self-determination

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) Reconciliation

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