NC12 Self-Determination and Sovereignty Workshop Katie Kiss Thursday 27 September 2012 It is with respect and gratitude that I acknowledge that we sit today on the lands of the Arrente peoples and I pay respect to your elders past and present. I also thank Marie Ellis for her welcome to country. My name is Katie Kiss and I work at the Australian Human Rights Commission. I am a Kaanju woman through my Grandmother and I am also Birri Gubba through my Grandfather. Before I start, let me also quickly acknowledge my co-panel members, Barb Shaw – thank you for keeping it real; Rune Fjellheim – our Sami Friend; and Mick Dodson who has been a mentor to me over the last few years. Welcome and acknowledgment of country is actually directly relevant to the conversation we are having this morning because by doing what some would describe as a simple symbolic action, we - Aboriginal and Torres Strait Islander peoples are effectively asserting and recognising the ongoing sovereignty held by peoples over our lands, territories and resources. When we acknowledge country, we agree to conduct ourselves in a way that respects the sovereignty, culture, identities and stories of those whose lands we visit and move through as we conduct our work across the country. This session addresses three complex interrelated concepts, the political status of Aboriginal and Torres Strait Islander peoples in Australia, sovereignty and self-determination and while I do not consider myself to be an authority in this area, I have been asked to give my thoughts on this topic, from a policy perspective. I say they are complex, because from the work I have been engaged in through the Australian Human Rights Commission, it appears that these concepts have been defined at an international level and Indigenous peoples around the world are generally comfortable with them as concepts. However when it comes to being able to articulate what ‘sovereignty’, ‘selfdetermination’ and ‘political status’ mean on the ground practically for us – we all have different ideas as to what they mean and what they look like. While this is ok – how do Governments and others respond effectively to what we ask for? 1 For example – when we are arguing about being the sovereign owners of our lands and territories – are we saying that we want all the whitefellas to get back on their boats and go home – are we saying we want independent nationhood with our own government within Australia and if so does that mean we are no longer supported financially by the Australian Government in the same way we are now, and are we arguing this as language groups and Aboriginal and Torres Strait Islander nations individually, or as a collective of nations all working to the same goals? Are there specific parameters, elements, or characteristics that help to frame our arguments about our self determination, our sovereignty and our political status; and that we can use to frame both our governance as well as how governments work with us to appropriately support us in achieving our needs in this area? We all know the history of colonisation in this country so I won’t go over that except to acknowledge that as Aboriginal and Torres Strait Islander peoples we have never ceded our sovereignty as a collective of nations or language groups. Unlike the Indigenous peoples in Canada or New Zealand, a treaty or treaties were never negotiated with Aboriginal or Torres Strait Islander peoples and we were never given a choice about our political status within the Australian State. The governments of Australia (prior to Federation) assumed power, control and authority over every aspect of our lives and they continue to assert this power, control and authority through their policies, their laws, and as it is currently drafted, their constitution. However, with the establishment of the United Nations, we now have international treaties that legally bind Nation-state members to human rights standards that apply to all of their citizens including Indigenous peoples. Self-determination is a fundamental human right that is concerned specifically with the right of people to shape their own lives. It also allows peoples like Indigenous peoples or ethnic and migrant communities within a nation-state to maintain and strengthen their political, legal, economic, social and cultural life including their own institutions, while retaining their right to choose whether they participate in the mainstream environments in which they live. Australia’s ratification of ICESCR and the ICCPR requires the Government to respect and promote self-determination. Article 1 in both Covenants provides that: 1. All peoples have the right to self-determination. By virtue of that right they freely pursue 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…and in no case may a people be deprived of its own means of subsistence. 2 Self-determination has more recently been re-affirmed in the Declaration on the Rights of Indigenous Peoples. Article 3 provides that: Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. While the principle of self-determination underpins all of the rights outlined in the Declaration, a number of articles directly promote the right of selfdetermination. I encourage you to familiarise yourselves with the Declaration and use to promote your rights. A copy is included in your telephone book…because the Declaration also provides guidance on other core principles and rights including that we have the right to give our free, prior and informed consent, to protect and promote our cultures, and to be free from discrimination, in particular racial discrimination. Self-determination has long been contentious in the Australian Indigenous policy dialogue. As Les outlined in his opening address, Aboriginal and Torres Strait Islander people across the country have been pursuing and fighting for self-determination for many years and as a young girl growing up in Rockhampton, I watched my grandfather who was actively involved in the establishment of our community controlled organisations including the Aboriginal Legal Service, and the Housing Co-op. However, Governments understand and interpret self-determination and sovereignty in the context of nationhood and the role that governments play in governing its citizens. After several decades of increasing Australian Government support for Aboriginal and Torres Strait Islander self-determination during the 1970s, 1980s, and early 1990s, the Coalition Government elected in 1996 reversed that position. Since then, the Government has relied on interpretations of the term ‘self-determination’ that are inconsistent with both international human rights law and the popular view of Indigenous peoples worldwide to support their steadfast rejection of Indigenous self-determination. 1 This includes concerns expressed by the Australian Government that:  to confer collective rights on a people will diminish individual rights  the recognition of the right of self-determination for indigenous peoples will result in more rights for one group of people that are not afforded to others  the recognition of Indigenous self-determination will provide legitimacy to claims of secession, the creation of separate Indigenous states, or the recognition of independent sovereignty 2 1 W Jonas, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2002, Chapter 2, Human Rights and Equal Opportunity Commission, Sydney, 2002, p 50. 2 L O’Donoghue, ‘Keynote Address: Australian Government and Self-Determination, in Australian Institute of Aboriginal and Torres Strait Islander Studies Report Series: Aboriginal Self-Determination in Australia, C Fletcher (Ed), Aboriginal Studies Press, Canberra, 1994, p 8. 3 Despite active participation in the development of the Declaration, on 13 September 2007 when the world’s governments were called to vote on its adoption in the United Nations General Assembly, Australia was one of only four countries to vote against it. 3 Self-determination and free, prior and informed consent were put forward as critical issues in Australia’s decision to vote no. 4 Aboriginal and Torres Strait Islander people including people that are here at National Congress, Mick Dodson, Lowitja O’Donohue, Tom Calma and Megan Davis; were also actively engaged throughout the development of the Declaration on the Rights of Indigenous Peoples and we participated in the conversations about self-determination. During those deliberations Indigenous peoples around the world, including those from Australia, considered that achieving self-determination does not necessarily equate to an aspiration of secession; nor does it amount to a collective right of veto. 5 Article 46 of the Declaration clearly reflects this position. However, there has been extensive debate in Australia regarding the justification of settlement based on terra nullius and the ongoing sovereignty of Aboriginal and Torres Strait Islander peoples over our lands, territories and resources. While the High Court decision in Mabo addressed the issue of terra nullius’, the subsequent native title system has been inadequate in providing recognition of ongoing rights to lands, territories and resources, including self-determination and the maintenance of cultural integrity. While the Native Title Act sets up a framework for giving recognition to our prior sovereignty, the extent to which our rights continue to be recognised and how we can or can not exercise them are not determined by us, they are determined by others. And as we have seen with the 1998 Amendments to Native Title Act, if it provides too much of a good thing for us – they just amend the Act. Consequently, the right of self-determination as it applies to Aboriginal and Torres Strait Islander peoples domestically has been systematically reduced by government to something less than all other Australians are entitled to – a limiting version of self-determination rather than one which enables us to reach our full potential. 3 Australia along with Canada, New Zealand and the United States of America (the CANZUS Group) voted against the adoption of the United Nations Declaration on the Rights of Indigenous Peoples in the General Assembly in New York on 13 September 2007. 4 Commonwealth of Australia, Senate Official Hansard, No. 10, Forty-First Parliament, First Session—Tenth Period, 10 September 2007, p 54. 5 United Nations General Assembly, ‘General Assembly Adopts Declaration On Rights Of Indigenous Peoples; ‘Major Step Forward’ Towards Human Rights For All, Says President’, Media Release, 13 September 2007, Sixty-first General Assembly, Plenary, 107th & 108th Meetings (AM & PM), GA/10612. 4 The oppositional approach taken by the Australian Government concerning self-determination has set Aboriginal and Torres Strait Islander peoples up as ‘competitors of government’ 6 and has limited the recognition and exercise of our human rights. While the Australian Government is currently working with Aboriginal and Torres Strait Islander peoples in some areas to develop frameworks that support the advancement of Aboriginal and Torres Strait Islander peoples (the Close the Gap process, and the establishment of the National Congress of Australia’s First Peoples, and the bipartisan commitment to support a referendum to recognise Aboriginal and Torres Strait Islander peoples in the Australian Constitution), unfortunately efforts to date have been and continue to be ad hoc, siloed and frequently inconsistent with human rights standards. In the Australian Governments statement adopting the Declaration in April 2009, it acknowledged its role in fulfilling the right of self-determination as it applies to Aboriginal and Torres Strait Islander peoples. The Minister for Indigenous Affairs, Jenny Macklin confirmed that: [t]hrough the Article on self-determination, the Declaration recognises the entitlement of Indigenous peoples to have control over their destiny and to be treated respectfully…We support Indigenous peoples’ aspirations to develop a level of economic independence so they can manage their own affairs and maintain their strong culture and identity…We also respect the desire, both past and present, of Indigenous peoples to maintain and strengthen their distinctive spiritual relationship with lands and waters…[and] [w]here possible, the Australian Government encourages land use and ownership issues to be resolved through mediation and negotiation rather than litigation. 7 As Aboriginal and Torres Strait Islander peoples, we need to hold the government accountable to these statements, we need to quote it back to them and remind them that when they gave their support to the Declaration this is what they said about it. So how do we see self-determination applying to us - Aboriginal and Torres Strait Islander peoples? In 1993, Lowitja O’Donohue in her role as the Chairperson of ATSIC affirmed that ‘there is possibly no right more fundamental for Indigenous peoples than that of self-determination’ and that ‘its centrality to addressing our general disadvantage and oppressed condition has always been self-evident to Aboriginal and Torres Strait Islander peoples’. 8 6 W Jonas, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2002, Chapter 2, Human Rights and Equal Opportunity Commission, Sydney, 2002. 7 J Macklin, Minister for Families, Housing, Community Services and Indigenous Affairs, Statement on the United Nations Declaration on the Rights of Indigenous Peoples, 3 April 2009, at http://www.jennymacklin.fahcsia.gov.au/statements/Pages/un_declaration_03apr09.aspx (viewed 25 April 2012). 8 C Fletcher (Ed), Australian Institute of Aboriginal and Torres Strait Islander Studies Report Series: Aboriginal Self-Determination in Australia, Aboriginal Studies Press, Canberra,1994, p 10. 5 In a practical sense, self-determination means that Indigenous peoples have the freedom to live well and humanly, to determine what it means to live humanly, and to live according to our own values and beliefs. 9 Selfdetermining communities are able to make decisions collectively about how their priorities are progressed. Essentially it is about our governance and how we determine what that looks like. As such, self-determination can mean different things to different groups of people. While there can be no pre-determined outcome of what selfdetermination looks like, it can be characterised as follows. Selfdetermination:          is a human right that is afforded to individuals as well as groups and it applies universally and equally to all segments of humanity cannot be viewed in isolation from other human rights but rather must be reconciled with and understood as part of the broader universe of values and prescriptions that constitute the modern human rights regime is a regulatory vehicle that broadly establishes rights for the benefit of all peoples, including Indigenous peoples is grounded in the precepts of freedom and equality, and opposes both prospectively and retroactively, patterns of empire and conquest affirms that human beings, individually and groups, are equally entitled to be in control of their own destinies and to live within governing institutional orders that are devised accordingly affirms that peoples are entitled to participate equally in the development of the governing institutional order, including the constitution, under which they live and, further, to have that governing order be one in which they may live and develop freely on a continuous basis includes the dual aspects of autonomous governance and participatory engagement – this relates to our internal is an instrument of reconciliation and conciliation, particularly for peoples who have suffered oppression at the hands of others promotes the building of a social and political order based on relations of mutual understanding and respect. 10 9 E Daes. ‘Striving for self-determination for Indigenous peoples’, in Y Kly, and D Kly (Eds), In pursuit of the right to self-determination, Clarity Press, Geneva, 2000, p 58. 10 S J Anaya, ‘The Right of Indigenous Peoples to Self-Determination I the Post-Declaration Era’ in C Charters and R Stavenhaven (Eds), Making the Declaration Work (2009) 184, pp 186-196. 6 Lowitja argued that the concept of self-determination for Aboriginal and Torres Strait Islander peoples is underpinned by a number of goals and objectives including:        land entitlement and compensation for dispossession recognition of customary law community self-governance involvement in Commonwealth and state or territory government policy, planning and program implementation economic independence sharing in mineral and other resources realised from our land aspirations of independent indigenous self-government. The final point concerning self-government, relates specifically to our 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. 11 National governments have a responsibility to ensure that structures, policies and laws, facilitate our ability to exercise our right to self-determination. Their role is to support the achievement of our social, economic and cultural development needs and aspirations not control and limit it. In terms of sovereignty, I believe this is - to a certain extent - a state of mind. As an Aboriginal person I don’t wait for government or others to tell me who I am, or to acknowledge or accept my heritage. When I go home to my country as a Kaanju woman, my old people up there are not waiting for whitefella’s to tell us that it is ok to be Aboriginal and give us permission to look after our lands. They are doing it – as they have done since time immemorial. As traditional owners, and custodians of our lands, territories, resources, cultures, languages and stories, we have a responsibility to assert our sovereignty in order to maintain these important elements that make up our identities and status as Aboriginal and Torres Strait Islander peoples. As I said earlier, the way we interact with each other is a reflection of our sovereignty. Questions such as whose your mob and where do you come from, are questions about our sovereignty and as different nations across our country – just like nation-states operate in the space of international sovereignty and territorial integrity – this is about our international relations and acknowledging and respecting that - our people continue to be sovereign in our own right. 11 L O’Donoghue, ‘Keynote Address: Australian Government and Self-Determination, in Australian Institute of Aboriginal and Torres Strait Islander Studies Report Series: Aboriginal Self-Determination in Australia, C Fletcher (Ed), Aboriginal Studies Press, Canberra,1994, pp 9-10. 7 However, because of colonisation, the relationship between Aboriginal and Torres Strait Islander peoples is based on inequality, power imbalance, and the fact that we are straddling two worlds. June Oscar, in her keynote speech to the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) Native Title Conference in June 2012, explains this in the following way: It is important that we acknowledge the challenging and complex operating environment which we are all continuing to live in, seeking justice and trying to raise families, and holding onto the lived practices of our beliefs. We as Indigenous People live out our lives in two worlds according to our custom and tradition and the modern reality. Yet this acknowledgement has never ever been forthcoming. Because the western lens is applied to everything we encounter. The challenge for Aboriginal and Torres Strait Islander peoples and governments is to come to an agreed understanding about how we can be supported to live our lives most effectively within the two worlds and ensure that we are not compromised any more as we do. Governments need to be accountable to what international law requires of them in responding to their obligations concerning self-determination, and how those requirements as articulated in the Declaration on the rights of Indigenous peoples apply domestically to address local challenges. The first step in progressing this is a dialogue between Aboriginal and Torres Strait Islander peoples and Australian governments to address selfdetermination. A number of questions that may assist this dialogue include: 1. What do Aboriginal and Torres Strait Islander peoples mean by ‘self-determination’? What does this look like in a practical sense? 2. Can Aboriginal and Torres Strait Islander peoples across Australia agree on the elements that reflect the collective understanding of self-determination in order to guide local development? 3. What needs to happen within the Aboriginal and Torres Strait Islander community to facilitate self-determination? 4. What changes need to happen in the policy and legislative environment to facilitate Aboriginal and Torres Strait Islander people’s right of self-determination? 5. What do Aboriginal and Torres Strait Islander peoples need from Australian governments to facilitate self-determination? 6. What are governments concerns with the concept of selfdetermination and what is required to make it work in the Australian context? 7. What do government need from Aboriginal and Torres Strait Islander peoples in order to facilitate our right of self-determination in Australia? 8 These are not easy questions. However, I think if we can achieve an agreed approach to self-determination we could see a positive cultural and social change in Australia. A change that would enable Aboriginal and Torres Strait Islander peoples to own our challenges and own the solutions; appropriately supported by governments and other members of our Australian community. The status quo is not an option. Thank you. 9