Indigenous self-determination, self-government and sovereignty

Whilst much of the focus in the recent decade has been on ‘Sorry’, and a wide cultural and political recognition of the wrongs of the past, there have been more other political movements to achieve representation for Indigenous Australians and Torres Strait Islanders. Indigenous Australians never chose the system of law that governs them, and due to their position as a minority of the population they do not generally have the ability to significantly influence the political process with their votes. Lobbying is one means of doing so, hence the Aboriginal Tent Embassy, or the widespread presence of ‘Invasion Day’ renaming of Australia Day.

Many Indigenous Australians seek greater power to govern themselves. Sometimes this is in the form of greater recognition of Aboriginal law that pre-dated the arrival of European law. This was explored comprehensively by the Australian Law Reform Commission in its Recognition of Aboriginal Customary Laws Report published in 1986, but its findings have been ignored by governments.

Other movements are more radical: a right to secede to form a sovereign nation of their own, others to become a nation (or nations) ‘within a nation’ as is the status legally of the Native American Nations in the United States of America, or special representation in Australian representative institutions such as Commonwealth and State Parliaments by means of reserved seats as is the case for Maori representation in New Zealand. These different bids to retain a separate political identity progress slowly but are gaining significant traction and prominence in Australian culture and awareness.

The absence of the recognition of Aborigines and Torres Strait Islanders in the Australian Constitution led some to argue that a new preamble or new provisions in the Constitution was a necessary step towards rectifying the wrongs of the past. Then Prime Minister Kevin Rudd made his National Apology to Australia’s Indigenous Peoples in the Federal Parliament in 2008 but did not establish mechanisms for a financial or political settlement. In December 2010 Prime Minister Julia Gillard appointed an ‘Expert Panel on Constitutional Recognition of Indigenous Australians’ which consulted nationwide and made recommendations for constitutional change. The proposed referendum was later abandoned by the Government of the time.

Developments in international recognition of indigenous peoples’ rights

One important source of pressure for constitutional change to accommodate the aspirations of indigenous people for a greater degree of political and cultural independence is likely to come from developments in international law, particularly the law contained in United Nations instruments. The United Nations Convention for the Elimination of All Forms of Racial Discrimination has become part of Australian law by its adoption in the federal Racial Discrimination Act 1975 (Cth)  and while the passage of the Act promised to become an important guarantee of Aboriginal rights to their land and property, the political and social climate has proved hostile to realising this promise. Article 27 of the United Nations International Covenant on Civil and Political Rights protects the cultural rights of different ethnic groups within nation states. Australia has ratified this covenant, but it has not been made part of Australian law. However, the fact of ratification has enabled Aborigines to argue for legislative protection of cultural rights.

The international legal order has been built upon the idea that the nation state has complete power over its citizens. This idea is increasingly under challenge where the state violates the human rights of its citizens as recognised under international law. One of the strongest challenges to that idea has come from indigenous peoples around the world. From 1983, under UN sponsorship, their representatives met annually with the representatives of the nation states to negotiate the terms of the Draft Declaration of the Rights of Indigenous Peoples. The Declaration was adopted by the United Nations General Assembly in 2007 with only Australia, USA, Canada and New Zealand dissenting. Australia finally endorsed the Declaration in 2009 but has not enacted legislation to ensure the implementation of the Declaration in Australia.