Australia’s real test

Jun 9, 2023
Canberra, Australia - February 22 2019:The Aboriginal Tent Embassy in Canberra Parliamentary Zone Australia Capital Territory. Activists claim to represent the political rights of Aboriginal Australians.

A few days after coming to power in 1972 Gough Whitlam declared that ‘Australia’s real test as far as the rest of the world is concerned is the role we create for our own Aborigines’. More than foreign aid programmes, more than any role the country plays in agreements or alliances, treatment of the Aborigines will be the thing upon which the rest of the world will judge Australia and Australians ‘not just now but in the greater perspective of history.’

With the country engaged in an intense debate about a voice to parliament Whitlam’s words are like a tolling bell. The referendum will have international implications whichever way the vote goes. And yet neither side of the argument has referred to the very real relevance here of international law and in particular the well established rights of indigenous people. Nowhere is this more apparent than in one of the most contentious questions in dispute. Why should the First Nations be given powers and privileges not available to other minorities? Such action, it is asserted, will divide the country on the basis of race and be akin to apartheid.

But indigenous rights have been embedded in international law for more than 60 years. By the 1950’s there was a realisation that the United Nations had dealt with the rights of nation states and of individuals while skirting the rights of distinctive minorities. The International Labour Organisation, the ILO, took up the cause with the co-operation of the major UN agencies and in 1957 issued Convention 107: On the Rights of Indigenous People. Its most enduring article was about land rights which declared that: ‘the right of ownership, collective or individual, of members of the populations concerned over lands which these populations traditionally occupy shall be recognised.’ As Whitlam observed it was the first treaty which had ever been adopted ‘to protect indigenous populations, to promote their rights and to regulate governments conduct towards them.’

Its impact in Australia is demonstrable. Copies of the convention were distributed at the foundation meeting in Adelaide of the Federal Council of Aboriginal Affairs (later FCAATSI) in 1958 by the veteran activist Mary Bennett. It was adopted by the Council at its second meeting in 1959 and land rights have remained at the heart of First Nations activism ever since. Both Whitlam and Don Dunston were motivated by the Convention as seen by the Northern Territory Land Rights Act of 1976 and Pitjantjatjara land rights initiated in South Australia in 1981. Dunstan was a foundation member of the Council and President in 1960.

International law played a major role in the Mabo judgement of 1992 which overturned the doctrine of terra-nullius and 200 years of legal precedent. In his lead judgement Justice Brennan explained that it was imperative that the common law kept ‘in step with international law.’ He referred in particular to the Covenant on Civil and Political Rights of 1996 and the opinion of the International Court of Justice in the Western Sahara Case in 1975.

First Nation’s activism moved in the same direction as the High Court. In 1988 Prime Minister Hawke was presented with a major statement on indigenous rights at the Barunga Festival. Along with the call for permanent control and enjoyment of ancestral lands was the new demand for ‘self-determination and self-management, including the freedom to pursue our own economic, social, religious and cultural development’. The Statement sought conditions ‘in accordance’ with the Universal Declaration of Human Rights as well as the twin Covenants on Economic, Social and Cultural Rights and Civil and Political Rights and the International Convention on the Elimination of all Forms of Racial Discrimination.

The year after the Barunga statement the ILO issued Convention no.169 which greatly expanded the rights of indigenous and tribal populations. Along with numerous other matters it declared that governments shall:

“Consult the people concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly.”

The work of a generation of activists culminated in the Declaration of the Rights of Indigenous People which received the imprimatur of the General Assembly in 2007. Australia signed up to it in 2009 and it has been enthusiastically promoted by the Foreign Minister Penny Wong as a key element in her makeover foreign policy. In July 2022 the Law Council of Australia declared that Australia must formally ratify the Declaration which they explained was the ‘authoritative international standard informing the way governments across the globe should engage with and protect the rights of indigenous peoples.’ In March this year the Human Rights Commission spoke with the same voice observing that the Declaration establishes a universal framework of minimum standards ‘for the survival, dignity and well-being of the indigenous of the world.’ It was particularly significant because indigenous peoples ’including Aborigines and Torres Strait Islander people were involved in its drafting.’

Which brings us back to the ULURU Statement which made no mention at all about U.N conventions or international law unlike their predecessors at Barunga almost thirty years before. They are also completely absent from the campaign for the Voice. It is not clear why. Was the decision made to be obsessively parochial and make no reference to what happens in the rest of the world assuming that such arguments might lose as much support as they would gain? Maybe that’s true but it deprives the Australian electorate of any knowledge of the way comparable countries have responded to international thinking about the rights of their First Nations communities. How many Australians have heard of the Saami Parliaments which were set up in Norway, Sweden and Finland in response to the ILO Convention 169? And even pertinent developments in more familiar countries like New Zealand and Canada are rarely mentioned. There are the Maori designated seats in the New Zealand parliament and the process of treaty making in Canada which resumed in the 1970’s and which continue to this day.

Whitlam’s warning of 1972 remains relevant. The current debate ignores the wider world and over sixty years of international law. But the world will respond to the result of the referendum. A defeat will set Australia back to the time when we were continually accosted about our long tradition of racism. But even a narrow victory will be an embarrassment meaning that six or seven million Australians voted to deny to the First Nations rights which are taken for granted in many comparable countries. And what is more the current of white racism which runs like an undertow through the national debate cannot be hidden from our neighbours.

It is here that domestic and international behaviour merges. Despite the often heroic efforts of Penny Wong to convince our neighbours that we now belong psychologically in this hemisphere we are clinging ever more firmly to the white man’s world of AUKUS,NATO, the FIVE EYES and ANZUS. Meanwhile the debate about the Voice, regardless of the final outcome, will display for all to see where our hearts really belong.

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