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Castan, Melissa; Yarrow, David --- "Charter Rights: Self - Determination for Indigenous Victorians" [2008] IndigLawB 43; (2008) 7(9) Indigenous Law Bulletin 9

Charter Rights
Self-Determination for Indigenous Victorians[1]

By Melissa Castan and David Yarrow.

Victoria’s Charter of Human Rights and Responsibilities Act[2] (‘the Charter’) is said to be based on human rights laws that have been enacted in the Australian Capital Territory, the United Kingdom and New Zealand. Curiously, like the legislation in those jurisdictions, the Charter does not address the very first right captured in the International Covenant on Civil and Political Rights (‘ICCPR’) or the International Covenant on Economic Social and Cultural Rights (‘ICESCR’); that is, there is no mention of the right of self-determination.

Some 40 years ago, Professor Bill Stanner drew attention to what he calls the ‘cult of disremembering’ or ‘the Great Australian Silence’. He described the collective inattention to the reality of what had been done to the original Australians as ‘a structural matter - a view from a window which has been carefully placed to exclude a whole quadrant of the landscape.’ Given the reluctance to address a right to self-determination in the Charter, either for Indigenous Victorians or as a general right, it appears that the ‘cult’ Stanner referred to is still practiced. The preamble to the Charter states that


human rights have a special importance for the Aboriginal people of Victoria, as descendants of Australia's first people, with their diverse spiritual, social, cultural and economic relationship with their traditional lands and waters’.

Section 19 makes special mention of the right of Indigenous peoples to enjoy their own culture. Attorney-General, Rob Hulls has indicated that ‘social, economic and cultural’ rights, such as the right to the highest attainable standard of health, education and social security, may be added to the Charter some time in the future. We argue that there are no reasonable grounds for excluding self-determination from the Victorian Charter of Human Rights and Responsibilities.


Why not Include Self-Determination in a Victorian Bill of Rights?

Self-determination is central to the protection of all human rights. The State Parliament has relied upon the ICCPR as the baseline in drafting an appropriate statement of human rights principles for Victoria. Self-determination appears as Article 1 in that Covenant. It is a civil and political human right equal to all other rights articulated in the ICCPR (although we do not agree that the content of human rights should be limited to only those expressed in the ICCPR).

It is no accident that self-determination is included in both the ICCPR and the ICESCR which, together with the Universal Declaration of Human Rights, are recognised as the primary statement of human rights principles in the United Nations human rights system. The Declaration on the Rights of Indigenous People (DRIP), further reiterates the self-determination standard as fundamental to the rights of Indigenous people around the world. It is a concept central to human dignity; it guarantees full and free participation in civil and political processes, as well as the rights to pursue economic, social and cultural development. Almost every aspect of public life, particularly government decision making, involves the right to self-determination.

It promotes social solidarity and goodwill between citizens and communities. Even when we do not agree with policy outcomes, if we are committed to the process by which such outcomes are achieved, we are more prepared to abide by the outcomes. A system of government that does not respect or protect self-determination for all citizens is one that operates and governs without effective citizen participation.

Section 18 of the Charter protects the right of public participation, but this is a much narrower right. Proper protection of the right to self-determination creates an institutional imperative to enhance the democratic process; omitting it from the Charter undermines the democratic process. For example, without a right to self-determination the widespread removal of elected local councillors by executive action, which occurred in Victoria in the early 1990s, is excluded from proper human rights deliberation. This allows wholesale dismissal of representative, democratic institutions to occur. In all instances, government action should be subject to human rights scrutiny when it impacts upon community participation and political autonomy. This is true in Indigenous and non-Indigenous contexts.

Several concerns have been raised about the inclusion of self-determination in the Charter. None withstand close scrutiny.

Uncertainty

A common concern regarding the inclusion of the right of self-determination is that its meaning is uncertain. But it is widely understood as a people’s right to freely determine their political status, and to freely pursue their economic, social and cultural development. There is extensive literature and jurisprudence which clarifies the right. Certainly, some elements of international law and policy concerning self-determination have been contested, such as the secession entitlements of colonised peoples. But these issues are marginal in discussions of self-determination; they must not detract from the clear core meaning. It is a substantial oversimplification – and an unhelpful one – to present this right as uncertain in international law.

Lack of Community Consensus

It has been said that self-determination is incoherent and confused at a community level. We disagree with this description of community and dispute its relevance to the question of inclusion in the Charter. The community at large may not have the same level of understanding of the right of self-determination as that of, say, an international jurist. However, community debate is concerned with the very substance of self-determination. This includes questions as to the role of the Indigenous community in decision making in matters of adoption, family placement and child protection, and the State/community division of responsibility in cultural heritage. The debates surrounding these issues go to the heart of self-determination. They demonstrate a good understanding, albeit not an expert one, of the right of self-determination and the parameters of debate about its implementation. It is part of the political process for communities to contest the meaning of human rights; debating the content of one particular right is also an expression of self-determination.

Further, notwithstanding any theoretical uncertainty within the community about the precise meanings, that of itself is not an adequate reason to withhold any recognition of the right. There are numerous other human rights that, despite limited community understanding, are protected by the Charter. These include, the rights to a fair and public hearing, to liberty, and freedom from arbitrary detention. These rights are not well understood by the community at large, but there are obvious and established policy reasons for their inclusion in the Charter.

Unintended Consequences

There is a fear that, because the right is ‘uncertain’, including self-determination in the Charter would give rise to ‘unintended consequences’. The core meaning of self-determination is as stable as that of any other right that has been included in the Charter. Consequences are to be determined by the content of a right.

The Content of the Right to Self-Determination

The debate about Indigenous self-determination is often presented as a matter of competing claims to the sovereignty of a territory. This is a false dichotomy. It fails to accurately represent the wide range of state obligations to minority groups and Indigenous people; the vast majority of these claims fall well short of any territorial or sovereign claim.

Self-determination has been a central issue in international law and policy since the 1919 Treaty of Versailles. The United Nations Special Rapporteur on the Fundamental Freedoms of Indigenous People, Professor S. James Anaya,[3]explains that self-determination has a ‘constitutive’ aspect, requiring that the governing institutional order be developed through the will of the peoples governed. It also has an ‘ongoing’ aspect, which means that the governing order be one that people can live in, and develop freely within, on a continuing basis. He suggests that decolonisation does not require ‘turning back the clock’, or reinstating pre-colonial governance arrangements. Instead, remedies can be developed in a way that is sensitive to present-day aspirations of the peoples who have been denied self-determination. In this way, remedial justice for the denial of self-determination is both backward looking and prospective in nature.

Anaya suggests five elements that constitute the right to self-determination. Together, these elements show the way the Victorian Government might comply with this international standard.

Non-Discrimination

Non-discrimination is more than mere ‘equal treatment’ or the creation of anti-discrimination law standards. Non-discrimination requires substantive equality; different communities with differing histories may require, at least temporarily, beneficial treatment or targeted ‘special measures’. Non-discrimination, as an aspect of self-determination, encompasses treatment of communities and individuals alike.

Anti-discrimination laws like the Equal Opportunity Act 1986 (Vic) accommodate individual complaints about failures to provide equal treatment on specified topics. Non-discrimination (in this sense) could be extended to require equal respect and concern for peoples and communities. This is not a difficult concept; it is already separately addressed in s 8(2) of the Charter which establishes the right of every person to enjoy his or her human rights without discrimination.

Cultural Integrity

Self-determination includes the right of communities to express, protect, preserve and transmit their cultural heritage and practices to future generations. This enables communities to maintain their cultural integrity both in the present and in the future. Culture, as envisaged by the right to self-determination, encompasses language, traditional practices, religion, spiritual values, preservation of group identity and self-definition. In some cases, cultural integrity can be maintained without government action. But where it cannot, respect for the right of self-determination will require government intervention in the form of supportive policies, programmes and legislation.

Victorian legislation already provides for a measure of protection of Aboriginal cultural heritage values on private land, reconciling the public interest in cultural heritage protection with the private of property rights. Whether the legislation is adequate, in light of the right to self-determination, will be determined by its capacity to provide a stable platform for the maintenance of Aboriginal cultural integrity. Interestingly, the Charter already protects Indigenous cultural rights in s 19.

Lands and Natural Resources

Land is an important aspect of Indigenous identity and social harmony. Spiritual beliefs, traditional practice based in the Indigenous relationship to land and the use of natural resources are also fundamental. The right to self-determination encompasses all of these elements; without them, Indigenous people cannot survive as Indigenous people. This requires that the State provide adequate protection for existing Indigenous rights to land and natural resources. It also requires access to a land base sufficient for maintaining the way of life of an Indigenous group, as well as facilitating the use of natural resources central to Indigenous cultural and economic practices.

Victorian Parliament has already acknowledged that Aboriginal Victorians are the original custodians of the land that is now Victoria.[4] The absence of controversy in response demonstrates that such an acknowledgement – of itself – does not create or affect legal rights in any substantive sense.[5]

Social Welfare and Development

Rights of social welfare and development are inherent aspects of the UN charter (articles 55 and 56), the ICESCR and the DRIP and are essential elements of self-determination.[6] Not only do these rights benefit individuals, they also extend to communities, or ‘peoples’. Anaya identifies a matrix of entitlements and duties that have developed regarding Indigenous peoples. These are aimed at remedying the historical treatment of Indigenous people underpinning much of their current economic disadvantage. This includes the historical dispossession of Indigenous people from their land and resources, which has created impaired economies, or the ‘poorest of the poor’. A more contemporary aspect is continuing discriminatory treatment of Indigenous people, whereby they are excluded from generally available social welfare.

Anaya says that there is a core consensus that States have obligations regarding social welfare and development.[7] Robert Tickner, former Minister for Aboriginal and Torres Strait Islander Affairs, said that Australia is committed at all levels of government to

take steps and commit resources to advance the social welfare and development of Indigenous individuals and communities.

Kevin Rudd made a similar commitment during the National Apology in February 2008.

This aspect of self-determination requires government action to improve and promote the economic and social welfare of Indigenous people. The Aboriginal Child Placement Principle, directed to the special social and cultural circumstances of Aboriginal Victorians, is an example of such government action.[8]

Self-Government

Self-government is often characterised as the internal aspect to self-determination (as distinct from the external, or sovereign, aspect). It refers to the allocation of rights and entitlements within an Indigenous group by the group itself, rather than dictated by an external authority. Self-government in this sense is process-oriented: it supports the way Indigenous groups make and enforce decisions that affect them as a group. But it does not require decision making authority about group members alone. Implementing decisions about the use of group resources, for example, may impact upon non-group members. A decision to deny access to a non-group member would require enforcement of the exclusion of the non-group member.

Self-government is also relevant to the administration of Indigenous programmes and policies; Aboriginal people should play a central role in the decision-making process. In Victoria, the establishment of the Koori Court Division of the Magistrates’ Court,[9] the Koori Court (Criminal Division) of the Children’s Court,[10] and the Koori Court Division of the County Court[11] aims to increase involvement by Koori elders, to engage their authority, in the administration of criminal justice. It is not hard to imagine similar arrangements in other parts of the judicial system. Co-operative arrangements within the executive arm of government would further enhance recognition of self-government.

Respect for self-government does not require the creation of territorial units subject to exclusive Indigenous administrative control. Rather, it encourages principled collaboration where administrative functions affect Indigenous interests.

Including a Right to Self Determination – Some Potential Consequences

Given the very mild protection given to those rights that are protected, it is all the more perplexing that the Charter does not include a right to self-determination. The scheme provides for human rights to be protected by Parliament, courts, tribunals and public authorities. Importantly, individuals have no right to bring a legal claim where they feel that their rights have been encroached upon.

The Charter requires courts and tribunals to interpret Victorian legislation in a manner that is, as far as possible, compatible with human rights, while still giving effect to the legislative purpose instrument. It allows two types of questions to be referred to the Victorian Supreme Court: questions of law relating to the application of the Charter, and questions regarding the interpretation of a statutory provision consistently with the Charter. Where a statutory provision cannot be interpreted consistently with human rights, the Supreme Court may make a declaration of ‘inconsistent interpretation’. Such a declaration is of very restricted legal effect; it does not affect the validity, operation or enforcement of the statutory provision or create in any person any legal right or give rise to any civil cause of action.

More interestingly, under the Charter, a court or tribunal may examine international conventions, international customary law, judicial decisions (as a secondary source), as well as the research and commentary of international scholars and experts. The articles contained in DRIP will play a role in the development of this part of international law. Decisions of the International Court of Justice, European Court of Justice, Inter-American Court of Human Rights and the UN treaty monitoring bodies such as the Human Rights Committee, would also become relevant to the Supreme Court’s review processes. The Charter permits the consideration of judgments of domestic and foreign courts and tribunals that are relevant to a human right (and thus also self-determination) when interpreting a statutory provision. Decisions from courts in the ACT, Canada, New Zealand, South Africa and the United Kingdom would thus contribute to the development of a human rights culture in Victoria.

Conclusion

The resistance to self-determination, an internationally recognised human right, is not limited to the Charter; it is endemic to Australian policy deliberations. This does not sit well with Australia’s obligations under international law to legislate to protect and promote human rights in general.

There are no convincing grounds on which to distinguish between the right of self-determination and the other rights enunciated in the ICCPR in relation to the Charter. For Indigenous and non-Indigenous Victorians, the inclusion of a right to self-determination would promote democratic inclusion and accountability.

Human rights are important for everyone; they have particular significance for the Aboriginal people of Victoria. Yet this cornerstone right remains glaringly absent from the Charter. It seems that Professor Stanner’s ‘cult of forgetfulness’ endures.


Melissa Castan is a Senior Lecturer in the Faculty of Law at Monash University.

David Yarrow is a Barrister in the Queensland Bar.


[1] This article is based upon an earlier article published in the Alternative Law Journal: Melissa Castan and David Yarrow, ‘A Charter of (Some) Rights … For Some?’[2006] AltLawJl 33; , (2006) 31(3) Alternative Law Journal, 132.

The authors would like to thank the Alternative Law Journal for use of that material.

[2] 2006 (Vic).

[3] S James Anaya, Indigenous Peoples in International Law (2nd ed, 2004).

[4] Constitution Act 1975 (Vic) s 1A.

[5] Ibid s 1A(3).

[6] Anaya above n 5, 108.

[7] Ibid 109.

[8] See Children, Youth and Families Act 2005 (Vic) s.13.

[9] Established by the Magistrates’ Court (Koori Court) Act 2002 (Vic).

[10] Established by the Children, Youth and Families Act 2005 (Vic) s 504(3)(c).

[11] Established by the County Court Amendment (Koori Court) Act 2008 (Vic).


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