Mabo Lecture by Les Malezer

I have come today to praise Eddie Koiki Mabo, the man, and to continue his fight for dignity and respect.

Let me begin by acknowledging the Aboriginal people and Torres Strait Islander people who are not only the rightful owners of this continent, but who are the spiritual and inherent guardians of the living landscape. We will always be the heart and soul of Australia.

I pay my respects to the local people who hold the law to this region and to their ancestors and to their descendents to come.

I also pay my respects to the hosts of this annual conference, AIATSIS, and the people and organizations who have contributed to this event.

I acknowledge Bobby MacLeod who has recently passed on, as a sign of respect to all our fallen heroes who have died without receiving the justice and dignity we demand as the first peoples of Australia and to all who have placed our existence as unified peoples ahead of individual gain and personal gratification.

I grieve for our many people who are divided from us, by politics and power, and who lie homeless or inebriated or in prisons, juvenile centres, foster homes, rehabilitation centres and mental institutions around the country. As long as they exist separated from us, from our families, from our communities and from our society we may never really be a peoples, a peoples exercising the right of self-determination. My lecture today is also dedicated to these people in the hope hat we may be reunited in our struggle to survive into the future.

I thank the Attorney General of Australia for his presence today at this event and, in so doing, express my hope that the Attorney General can participate with us in the spirit of self-determination and is prepared to engage in the dialogue about our rights as peoples.

I formally express my appreciation to the Government of Australia for its recent announcement of support, unqualified support, for the UN Declaration on the Rights of Indigenous Peoples.

And finally I acknowledge the joint statement by representatives of Aboriginal and Torres Strait Islander peoples and the Australian Government that was recently presented, for the first time ever, at the United Nations. In that statement we spoke of our joint determination to forge a new era of relations grounded in good faith and mutual respect. We also said we seek to demonstrate that trust and partnership are essential if we are to fully protect the rights of Indigenous peoples and we agreed that we each have a part to play in ensuring Aboriginal and Torres Strait Islander peoples’ rights are fully protected.

I hope those words will come to mean something in the days ahead.

Next year at the United Nations we intend to make a follow-up statement, a joint statement agreed by government and by our peoples, to announce progress made in implementing the rights of the Aboriginal and Torres Strait Islander peoples of Australia.

I want to now address Mabo, the man. First let me say, I knew Koiki Mabo and he knew me. We respected each other. We shared our common ideas and found common strength in our struggles for justice. We had both grown up under the Queensland racism and the repressive Bjelke Petersen government.

Today Koiki Mabo is a hero, and the name ‘Mabo’ is well known in Australia and around the world. But in the early 1980s, when he commenced his legal actions, a ten-year battle for his inherent rights, he was not known to many people outside of his local communities in Townsville and Mer Island. His true greatness was not fully appreciated when it should have been.

Although his assertion to have lawful rights to his land was ultimately vindicated he was humiliated in embarrassing ways in the process. He was humiliated before the courts, and here I am referring to the Queensland Supreme Court decision that found he did not have connection to his land, and he was humiliated by governments, that is, the government policy to oppose the inherent Aboriginal and Torres Strait Islander title to land. This is a policy that exists amongst the governments in Australia to this day, to this very minute.

Koiki Mabo died without hearing the final decision of the High Court. He did not die as a hero. Like every other Aboriginal or Torres Strait Islander that died before him and since 1788, he died as an alien in his own country.

So to Koiki Mabo I say thank you. Thank you for being determined when others around you stood back. Thank you for not standing down, thank you for not compromising, thank you for not saying ‘how can I exploit this situation to my personal advantage’.

Perhaps I should say, ‘Esso, esso, mina big esso’.

For those who do not know me, I am a Gubbi Gubbi / Butchulla man from the region of southeast Queensland. (I detest the name ‘Queen’s Land’. It is a name I have learned that was personally created and chosen by Queen Victoria for her newest and latest colony formed exactly 150 years ago, on 6 June, 1859. It is symbolic of the contempt for Aboriginal and Torres Strait Islander sovereign rights in our own country.)

When I was still technically a youth, in 1977, I helped form the Foundation for Aboriginal and Islander Research Action (FAIRA). FAIRA was not formed out of a need to have a legal service, health service, housing service, or child care agency. The Aboriginal and Torres Strait Islander people of Queensland founded FAIRA following a series of State-wide conferences convened by the Aboriginal and Islander Catholic Council. We were established for one clear purpose, to fight for Aboriginal and Torres Strait Islander rights.

The founding members especially included people from the remote reserves at that time; people who were sick and tired of being managed by the white government; people who refused to accept that we were inferior, and people who rejected the idea that our choices were that we must conform to Australian society or be locked away on reserves.

With the help of the churches, lawyers and committed individuals we created an organization for fight for our rights. We have been fighting ever since.

I am today Chairperson of FAIRA, as I was in 1977, and over the past 32 years, like Koiki Mabo, I have been rebelling against established Australia doctrine and law and the idea that the Australian governments and their laws should control our future.

Like Haudenosaunee Chief Deskaheh who approached the League of Nations in 1923, and like Martin Luther King who was troubled by the continued segregation and racism after the obilition of slavery in the United States, I believe I have been on a long journey to ‘climb the mountain’ and ‘see the other side’.

I believed I climbed my mountain in 2007, nearly two years ago. On 13 September 2007 I stood at the podium at the United Nations to address the General Assembly immediately after the adoption of the UN Declaration on the Rights of Indigenous Peoples. I pronounced that the Declaration belonged not only to the State members of the United Nations, but it belonged to the Indigenous Peoples of the World. The Declaration is delivered to those who are united against institutionalised racism and against segregated political power structures and who have fought without weakening for a true and meaningful human rights standard. In my speech I said:

“Today's adoption of the Declaration occurs because the United Nations and the Indigenous Peoples have found the common will to achieve this outcome. The Declaration does not represent solely the viewpoint of the United Nations, nor does it represent solely the viewpoint of the Indigenous Peoples. It is a Declaration which combines our views and interests and which sets the framework for the future. It is a tool for peace and justice, based upon mutual recognition and mutual respect.”
[Extract, Speech to UN General Assembly, "Upon Adoption of the Declaration on the Rights of Indigenous Peoples", by Les Malezer - Chairperson of the Global Indigenous Peoples Caucus", 13 September 2007]

I believe that I, and FAIRA, have now accomplished our task at the international level to provide the framework for justice at home. International human rights law is no longer silent or vague on the Indigenous Peoples of the world and our rights. It is now time for Australia to complete the process that began with ‘Mabo’ in 1992. This is the challenge now upon us.

We are well aware of the significance of the Mabo decision of the High Court and many of the elements regarding Native Title law.

We know that the root of native title (and the systems now in operation) is the recognition in Australian law of common law title by Aboriginal and Torres Strait Islander people, and that this recognition only emerged recently, 200 years after the British Crown claimed sovereignty over Australia. It also emerged as a decision of the High Court after the Government of Australia failed to introduce national land rights legislation in 1985.

We know also the Government’s decision to legislate to address Native Title was founded upon the wider need to identify where native title existed in Australia, and to establish procedures to ensure development in Australia could occur while respecting the rights of Aboriginal and Torres Strait lslander people, whatever they might turn out to be.

We know the Native Title Act carried a number of specific measures, such as;
a) establishing Native Title Representative Bodies,
b) redress for native title already impaired,
c) means for development where Native Title might exist and
d) a tribunal to adjudicate Native Title claims.

The 1993 legislation had at least two fundamentally discriminatory aspects. The first of these was the presumption, made first by the High Court, that Crown sovereignty has the power to extinguish Native Title and the second was that the onus of proof rested upon the Aboriginal and Torres Strait Islander people to claim and prove that they had customary connection over their territories.

The 1998 amendments brought many more discriminatory provisions into Australian law, resulting ultimately in the failure of the Native Title Act to work for the benefit of the Aboriginal and Torres Strait Islander people.

In 1999 the Committee on Elimination of Racial Discrimination (CERD) established that the Native Title laws in Australia were racially discriminatory and in breach of Australia's obligation under the international Convention on the Elimination of All Forms of Racial Discrimination. CERD has made four such findings since, and consistently called upon the Australian Government to enter into negotiations with the Aboriginal and Torres Strait Islander people for an acceptable arrangement. No doubt CERD will make the same recommendations again when it next considers the periodic report from Australia.

In 1983, the Hawke Government promised the Aboriginal and Torres Strait Islander people national land rights legislation. The return of an ALP government after eight years of the Fraser government (1975 - 1983) meant a return to the political agenda to recognise the land rights of the first Australians.

Whitlam had failed politically to enact the Northern Territory Land Rights Act before losing government but Malcolm Fraser played a strong hand in ensuring that this law was implemented immediately by his administration in 1976. The Fraser version of the land rights law was only slightly short in meeting all important principles identified in the Woodward Report, the report of the Aboriginal Land Rights Commission in 1974.

Woodward had insisted that Aboriginal people must have the right of veto over mining and major developments on our lands because, without such control, the people would not be able to exercise their rights and responsibilities over our territories. Even though the legislation did not contain the complete right of veto, and allowed a Minister of the Crown to have the final decision, the NT Land Rights Act in 1976 was the closest that Australian law has come to recognising the rights of Indigenous Peoples.

The Hawke Government said the proposed national land rights legislation, to be enacted in 1985, would carry five principles for national land rights. They are:

1. Aboriginal land to be held under inalienable freehold title
2. protection of sacred sites
3. Aboriginal control in relation to mining on Aboriginal land
4. access to mining royalty equivalents
5. compensation for lost land to be negotiated

We can see the Native Title laws now in operation in Australia do not meet these principles.

I want to address important issues regarding the human rights of Indigenous Peoples. We have heard of late about Aboriginal and Torres Strait Islander policy being administered according to the rule of law. It is an interesting reference being used to justify heavy handed policies against Aboriginal people who apparently offend Australian society’s sensibilities.

According to Wikipedia, application of the rule of law, without respect for human rights, is not necessarily consistent with democratic principles.

“The rule of law, also called supremacy of law, is a general legal maxim according to which decisions should be made by applying known principles or laws, without the intervention of discretion in their application. This maxim is intended to be a safeguard against arbitrary governance... The predominant view is that the concept of "rule of law" per se says nothing about the "justness" of the laws themselves, but simply how the legal system operates. As a consequence of this, a very undemocratic nation or one without respect for human rights can exist with a "rule of law" — a situation which may be occurring in several modern dictatorships. The "rule of law" or Rechtsstaat may be a necessary condition for democracy, but it is not a sufficient condition.”
Wikipedia on ‘Rule of Law’

The United Nations adopted the Declaration on the Rights of Indigenous Peoples by an overwhelming vote in 2007. The Declaration was the culmination of 25 years of campaigning by Indigenous Peoples from around the world for justice at the United Nations. The UN’s attention has now turned to the application of the rights of Indigenous Peoples.

Last week the United Nations Permanent Forum considered its obligations under Article 42 of the Declaration on the Rights of Indigenous Peoples. Article 42 states:

“The United Nations, its bodies, including the Permanent Forum on Indigenous Issues, and specialized agencies, including at the country level, and States shall promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration.”

Following close examination of this Article the Permanent Forum has adopted a general comment (E/C.19/2009/L.3) that sets out to clarify its role under Article 42 and, in doing so, elaborates on the status of the rights of Indigenous Peoples under international law. In this general comment the Permanent Forum asserts the rights of Indigenous Peoples contained in the Declaration are already based in established international human rights instruments.

“The Declaration forms a part of universal human rights law… The human rights treaty bodies will need to refer to the Declaration, as their practice already indicates, whenever dealing with indigenous rights. The Declaration is … a general instrument of human rights.”
(UN Document E/C.19/2009/L.3)

“The Declaration is a human rights standard elaborated upon the fundamental rights of universal application and set in the cultural, economic, political and social context of indigenous peoples… The human rights envisaged in the Declaration are the same human rights that have been recognized for the rest of humankind... A number of the articles are based on the human rights covenants and other conventions...”
(UN Document E/C.19/2009/L.3)

While the general comment stops short of stating the Declaration is a binding instrument under international law it does recognise that the Declaration does have some binding character. The general comment states the long-lasting negotiations over the final text of the Declaration resulted in ‘a document expressing a broad common ground, which has now also been endorsed by the General Assembly’. Therefore, in reality the Declaration is almost universally agreed upon and in this context is part of a growing “rapprochement” (or harmonious relationship) between declarations and treaties.

I divert here slightly to point out that the Committee on Economic, Social and Cultural Rights did, in fact, recommend in its very recent report on Australia, dated 22 May 2009, that Australia ‘strengthen its efforts to guarantee the indigenous peoples' rights under articles 1 and 15 to enjoy their identity and culture’.[para 33, E/C.12/AUS/CO/4] Article 1 in this case refers to the right of self-determination.

I have attended so far in 2009 sessions of three human rights treaty bodies to follow their concerns about Australia’s treatment of the Aboriginal and Torres Strait Islander peoples. Let me tell you something about the position of each of these treaty bodies.

The Committee on the Elimination of Racial Discrimination (CERD), using its ‘urgent action’ procedures in response to requests received from Australia, wrote to the Australian Government on 13 March 2009 to request an update by end of July on the Northern Territory intervention laws and Australia’s compliance with the ‘race convention’. CERD made no updating comment, in its communication to Australia, about the land rights issues but I believe the Committee intends to meet representatives of the Government of Australia during its next session in August this year.

In 2005 at its last consideration of the periodic report from Australia, CERD asked Australia to submit its next periodic report by 30 October 2008. That has not occurred. I am not aware of the details nor the timing but I am aware that the government has called for any public submissions to its report by 27 March 2009. I do not know whether the periodic report has since been submitted to CERD or what intentions the government has to submit this overdue report to CERD.

In its previous report on Australia CERD of 14 April 2005 CERD expressed strong views on the native title laws in Australia.

“The Committee recommends that the State party refrain from adopting measures that withdraw existing guarantees of indigenous rights and that it make every effort to seek the informed consent of indigenous peoples before adopting decisions relating to their rights to land. It further recommends that the State party reopen discussions with indigenous peoples with a view to discussing possible amendments to the Native Title Act and finding solutions acceptable to all… The Committee is concerned about information according to which proof of continuous observance and acknowledgement of the laws and customs of indigenous peoples since the British acquisition of sovereignty over Australia is required to establish elements in the statutory definition of native title under the Native Title Act. The high standard of proof required is reported to have the consequence that many indigenous peoples are unable to obtain recognition of their relationship with their traditional lands (art. 5)… The Committee wishes to receive more detailed information, including statistical data, on the extent to which such arrangements respond to indigenous claims over land. Information on achievements at State and Territory levels may also be provided.”
[UN Document CERD/C/AUS/CO/14]

The Human Rights Committee, in its report of 2 April 2009, expressed concern about the high cost, complexity and strict rules of evidence applying to claims under the Native Title Act and expressed its regret about the lack of sufficient steps taken by the State party to implement the Committee’s recommendations adopted in 2000. In 2000 The Human Rights Committee expressed its concern:

"that in many areas native title rights and interests remain unresolved and that the Native Title Amendments of 1998 … limit the rights of indigenous persons and communities… and affects their interests in native title lands, particularly pastoral lands… The high level of exclusion and poverty facing indigenous persons is indicative of the urgent nature of these concerns. In particular, the Committee recommends that the necessary steps be taken to restore and protect the titles and interests of indigenous persons in their native lands, including by considering amending anew the Native Title Act, taking into account these concerns."
[UN Document A/55/40,paras.498-528]

In its report of two months ago the Human Rights Committee requested Australia to continue its efforts to improve the operation of the Native Title system, in consultation with Aboriginal and Torres Strait Islander Peoples.

The Committee on Economic, Social and Cultural Rights heard reports from the Government of Australia on 23 and 24 March 2009. Once again, I attended those meetings. The Committee on Economic, Social and Cultural Rights concluded, inter alia, that; "the Covenant [on Economic, Social and Cultural Rights] has not been incorporated into domestic law and that [Australia] has not yet adopted a comprehensive legal framework for the protection of the Covenant rights at the Federal level, despite the recommendations adopted by the Committee in 2000. Furthermore, the Committee regrets that judicial decisions make little reference to international human rights law, including the Covenant."
[UN Document CCPR/C/AUS/CO/5]

The Committee called for effective judicial remedies for the protection of rights under the Covenant; that training programmes be organised for the Judiciary on the Covenant and the jurisprudence of the Committee. On Land Rights the Committee noted with concern ‘the high cost, complexity and strict rules of evidence applying to claims under the Native Title Act. It regrets the lack of sufficient steps taken by the State party to implement the Committee’s recommendations adopted in 2000. [Australia] should continue its efforts to improve the operation of the Native Title system, in consultation with Aboriginal and Torres Strait Islander Peoples.’

I conclude my comments on the human rights treaty body reports for this year by pointing out that I have been very selective about the quotations I have used. There is much more information in those reports and findings which warrant attention. I have used these instances to make it as clear as possible to everyone here four particular points.

The first one is that Australia has international obligations regarding human rights law, and that these obligations exist in the existing treaties signed by Australia. About this there can be no doubt.

The second point is that we, as the Aboriginal and Torres Strait Islander peoples, have been 'taken in' by the Government regarding our rights and the legal obligations to promote and protect our rights. In the pursuit of Native Title we have allowed ourselves to be subjected to a process, a supposedly fair legal process, where our interests are resolved without discrimination and under the principle of equality. Has the Government of Australia addressed the findings and recommendations of the human rights treaty bodies, not just one treaty body, but all relevant treaty bodies to which Australia has an obligation under international law? Has the government made the necessary steps to inform us of our rights and of the findings of these bodies? Has the government consulted with us regarding reforms to the Native Title system?

The third point is that Aboriginal and Torres Strait Islander people are blinded and crippled by our lack of capacity to engage in human rights and legal reforms. I am not referring here to the information generated by the Australian Human Rights Commission, which has done a wonderful job, under the leadership of Commissioner Tom Calma, to highlight the important issues concerning the rights of Aboriginal and Torres Strait Islander peoples. I am referring to the actions by government to strip us of our own institutions and to prevent us having access to means for autonomy. The Native Title Representative Body structures are not, for the most part, the structures of land councils. They do not function as land councils. They are structures that can be controlled by governments through legislation, funding and contracts. Many NTRBs – particularly along the eastern seaboard - have now been replaced by ‘Native Title Services’ and these Native Title Services are not even community-controlled organizations. They are custom-built by the government. While I have respect for many of the people I know who administer and work in these bodies, and there are a few people for whom I have no respect whatsoever, that is not the point. The point is that Aboriginal and Torres Strait Islander people are entitled to have capacity and control, and that means we must have access to our own institutions and to autonomous funding.

The fourth point, and the most critical, is that the current system is not achieving good outcomes in land rights. The Native Title debates have been so constrained that we have been left holding a process which does not work. It is a process that is proven to be racially discriminatory. It is a process removed from the principles of land rights but which has totally replaced the land rights agenda of the Aboriginal and Torres Strait Islander people. It is an inefficient, ineffective and ultimately manipulated process which draws everyone’s attention and takes our mind off the results being achieved, or not achieved.

Having made these four very strong criticisms, I want to turn my attention to the legitimate human rights of the Aboriginal and Torres Strait Islander people in Australia.

The Government of Australia has expressed its solemn support for the UN Declaration on the Rights of Indigenous Peoples. In doing so the Government confirmed that the Declaration does not change any of the laws in Australia.

However it is misleading to refer to the Declaration on the Rights of Indigenous Peoples as an aspirational document. ‘Aspirational’ can mean ambitious or ideal. The Declaration is neither of these things. The rights contained in the Declaration are very much meant to be implemented. The Declaration is a practical instrument designed in its construction to address the areas of racial discrimination, inequality and exploitation that has manifestly and consistently occurred against Indigenous Peoples around the world.

I have already explained that the Declaration has a binding nature and that many of the rights in the Declaration are already legally binding under existing human rights treaties. Article 42 of the Declaration leaves no doubt that the Declaration is intended to have application. This intention also is expressed in many UN resolutions, instruments and mechanisms including, inter alia, in the Durban Declaration and Program of Action, the Durban Review Outcome Document, and the Second Decade of the World’s Indigenous Peoples and associated Programme of Action.

In 1982 the United Nations accepted evidence that around the world there were populations, now identified as the Indigenous Peoples of the world, who had common characteristics, and that these people were so marginalised and exploited by other dominating populations that the United Nations should monitor their human rights as a matter of international concern.

There are over 370 million Indigenous Peoples living in up to 80 countries around the world. We survive on all continents except Antarctica, and we inhabit all biospheres from deserts to rainforests, from tundra to the tropics, from small islands to mountain tops. We are the holders of 80% of the cultural diversity in the world including most of the 6000 languages of the world. We survive in those regions where the biodiversity has survived the ravages of the industrialised world. We are, ultimately, the protectors of that biodiversity and the environment and the climate.

Apart from these identifiers we have characteristics that leave little doubt about our identities. Here are some of those:
a) We have a historical and traditional association with our territories that is spiritual and sustaining.
b) We have experienced colonisation of our territories and our resources.
c) We have a distinct identity and have been marginalised by the dominant society, in political, social, economic and cultural terms. We are usually at the bottom of the socio-economic ladder.
d) We have a desire to continue our cultural distinctions and to have our future generations survive as a distinct culture based upon our values.

The most important thing to know about the Declaration, at least the most important from my experiences, is to know that most of the rights are related to the rights of ‘peoples’ rather than the rights of individuals. The Declaration is ultimately concerned with collective rights. I will not elaborate on that, suffice to say many of the rights cannot be exercised or enjoyed unilaterally by individuals.

Who are peoples in international law? This is a question that dominated the final stages of negotiations. For us as Aboriginals and Torres Strait Islanders it is a critical question. The United Nations is founded upon the interests of peoples, not governments as we might think. The Charter of the UN begins ‘we, the peoples of the world’. Many governments believe that it is the nation state that is the entity of the peoples. For example, the ‘peoples of Ireland’ are the entire population of Ireland and their ‘right as peoples to self-determination’ is exercised through the national government as the political institution of the peoples.

Indigenous Peoples are now clearly recognised as 'peoples' and, as such, have the right to exercise self-determination as recognised under international law.

As the Aboriginal and Torres Strait Islander populations in Australia, I believe we have to consider, if not ultimately answer, the question. Are we peoples? Perhaps the Government of Australia has already answered that question, by saying we are all Australians together and therefore our right of self-determination exists in the form of the Australian Government, and our political rights are individual rights expressed through our participation in voting and other democratic procedures within Australia. Is that why the Government now only refers to us in official statements as indigenous Australians? The government should have an answer to that question.

The Declaration on the Rights of Indigenous Peoples has, in my view, two central components, the right to self-determination and land rights. (Perhaps, we could argue that the right to non-discrimination is a third component but this only becomes relevant if equality and non-discrimination are not integral to the exercise of self-determination and land rights.)

For this lecture I am concentrating on land rights, but let me first address some relevant aspects of self-determination. While Article 3 of the Declaration expressly states ‘Indigenous Peoples have the right to self-determination’ the majority of the remaining 45 Articles really give firther definition to the right of self-determination.

For example the Articles address rights to:
a) Autonomy or self-government (Article 4, 37)
b) Distinct political, legal, economic, social and cultural institutions (Article 5)
c) Identity, dignity and non-discrimination (Articles 2, 7, 15, 22, 33)
d) Protection against genocide or assimilation (Article 7, 8)
e) Control and ownership of culture, cultural property, ceremonies (Article 12, 13)
f) Ownership of traditional practices and traditional knowledge (Articles 24, 34, 36)
g) Control of education, languages, media (Articles 14, 16)
h) Representative institutions, choosing representatives, decision-making and free, prior informed consent to developments and intrusions (Articles 18, 19, 20)
i) Economic and Social Development (Articles 3, 21, 23, 32, 36)

These are all rights associated one way or another with collective interests of peoples and the exercise of self-determination.

Articles 25 to 32 in the Declaration relate to the rights of Indigenous Peoples to our lands, territories including waters and seas, and resources, and to have control of development within those territories. These land rights are inherent rights derived from our identity as peoples and our status as first peoples in those territories. The rights contained in these 8 Articles, and note that some other Articles also relate to lands such as Article 10, are very deliberately derived. Most of the rights contained in Articles 25 to 32 are also defined in ILO Convention 169.

ILO Convention ILO 169, a Convention concerning Indigenous and Tribal Peoples in Independent Countries, was adopted by the International Labour Organisation in 1989. While Aboriginal and Torres Strait Islander delegates were closely involved in the drafting of this Convention they made a decision to walk away from the Convention when it was finally adopted. Their reason was because the Convention did not recognise that Indigenous Peoples had the right of peoples.

Now that the Declaration has been adopted it might be to our advantage to have the Government of Australia ratify this international instrument. It is a legally binding document and recognises most or what we seek under a land rights model. I hope that we will be able to have national consultations on ratification of this Convention within the year.

Article 25 of the Declaration establishes the significance of the relationship between Indigenous Peoples and our territories, stating:
“Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.”

Article 26 establishes that Indigenous Peoples have the right of ownership and control over their territories. It also establishes that governments should recognise and protect those rights.

Article 29 clarifies that Indigenous Peoples are responsible for the protection and / or development of their territories and the governments do not have the capacity to interfere with those rights without the people’s free, prior and informed consent. This right is further elaborated in Article 30 which prohibits our territories being used for military purposes without our consent. However Article 30 incorporates a provision for governments to use the lands it if ‘justified by a significant threat to relevant public interest’. This point was hotly contested by Indigenous Peoples delegations as it potentially leaves discretion to government and not Indigenous Peoples as to interpretation of ‘significant threat’ or ‘public interest’.

Article 31 expands the right of control over the resources of Indigenous Peoples territories by making it clear that intellectual property rights, traditional knowledge and genetic resources are under the ownership and control of the Indigenous Peoples.

Article 32 deals with development of resources and lands in Indigenous Peoples territories. It makes it clear that any development, utilization or exploitation of mineral, water or other resources on Indigenous Peoples territories cannot occur without their free, prior and informed consent.

For the most part, these Articles that I have presented are easy to comprehend and understand. I believe they are beyond criticism and they establish quite clearly that complete ownership and control of the territories and the resources within those territories rests with the Indigenous Peoples concerned, under a regime of self-determination by ‘peoples’. However I am sure that most of you recognise these rights are not recognised in Australia.

I mentioned that the Declaration was written as a practical or pragmatic document to address the areas of discrimination and exploitation that has been experienced by the Indigenous Peoples. Articles 27 and 28 are good examples of this aspect. Article 28 says:

“Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.”

Our rights to have our territories returned, replaced or compensated is unambiguous Article 28. Our experiences tell us that arrangements for redress in Australia have mostly turned out to be duds in practice. For example the Aboriginal Land Act in Queensland or the Aboriginal Land Fund have not been regarded as successful instruments for redress.

I remember that New Zealand had particularly strong objections to the use of the word ‘redress’. Not surprisingly, the more that NZ objected to the term, the more we grew to like it. I understand that ‘redress’ is the correct term to be used in this context. That is, redress includes restitution, replacement and / or compensation. The right to redress also appears in Articles 8, 11, 20 and 32 of the Declaration.

Article 8 – redress for forced assimilation or destruction of culture;
Article 11 – redress for loss of cultural property taken without consent;
Article 20 – redress for people deprived of their means to subsistence and development;
Article 32 – redress for exploitation of minerals, water or other resources

Article 27 addresses the circumstances where Indigenous Peoples are in dispute with government and can only appeal to the government or a justice system which is biased.

“States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.”

So where are we in Australia with Native Title and our rights as Indigenous Peoples to our territories and resources? Clearly change must occur. This is already incumbent upon government, as we can see under their international obligations. The real crunch (for the government) is that they are expected to reach a satisfactory outcome in partnership with the Indigenous Peoples.

It is seventeen years since the High Court released its ruling on the Mabo case. Seventeen years since the High Court stated that the people of Mer are ‘entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands’.

It is ten years since the Committee on the Elimination of Racial Discrimination (CERD) first found that Australia’s native title laws, as amended in 1998, were in breach of the International Convention on the Elimination of All Forms of Racial Discrimination, a finding that has been repeated in subsequent years and continues today. It is also a finding that has been present in reports from human rights treaty bodies and special mechanisms in one form or other in 2000, 2002, 2005, 2006, 2007 and 2009. There is no alternative view upon which the government can put its hands to defend the current situation.

It is four years since the United Nations adopted the programme of action for the second decade of the World’s Indigenous Peoples and
a) called upon governments to launch a review of their national legislations to eliminate possible discriminatory provisions with the full and effective participation of indigenous experts,
b) recommended that national constitutions should recognize the existence of indigenous peoples and make explicit reference to them, where relevant, and
c) recommended that governments should consider integrating traditional systems of justice into national legislations in conformity with international human rights law and international standards of justice.

It is two years since the United Nations adopted the Declaration on the Rights of Indigenous Peoples.

It is two months since the Durban Review Conference, examining the progress made since the World Conference on Racism in 2001, welcomed the adoption of the UN Declaration on the rights of indigenous peoples and urged States ‘to take all necessary measures to implement the rights of indigenous peoples in accordance with international human rights instruments without discrimination’.

And it is two months since the Government of Australia announced its position of support for the Declaration on the Rights of Indigenous Peoples.

Now, in Australia, it is time for us to take the next step arising from ‘Mabo’. It is time to evaluate the outcomes from the Mabo decision of the High Court and to analyse fundamental principles to ensure that we have eliminated racism entirely from the land rights system.

If Koiki Mabo were alive today he would be an angry man. The rights he won in the High Court have been eroded away by government, courts and socio-economic pressures.

The Australian culture, which we know as Aboriginal and Torres Strait Islander people, of take everything and give back nothing has survived the Mabo phenomenon of 1992. The High Court of Australia was not prepared to discuss the issue of Indigenous Peoples’ sovereignty, when Koiki Mabo’s case went before it. The legitimacy of Crown sovereignty in Australia’s legal system was stringently upheld. The issue of whether Aboriginal and Torres Strait Islander peoples ever legitimately lost our sovereignty was not directly dealt with in the Mabo case. While I have steadfastly not used the word sovereignty in my international dealings for the rights of Indigenous Peoples I have never been hesitant to assert the power of self-determination, a right held by Indigenous Peoples.

It was interesting to hear Justice French bring public attention to the concept of a treaty between the government of Australia and the Aboriginal and Torres Strait Islander peoples. In the opinion of Justice French, if I understood him properly, is that a treaty can be concluded. That is my opinion also. I refer to Article 37 of the Declaration that says

“Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements.”

Let me now set out some ideas, for your consideration. I stress that these ideas may seem fanciful but are not so inconceivable if a serious attempt is to be made to address the shortcomings of the current system and implement the rights of Indigenous Peoples in accordance with the standards that have now been internationally recognized

• The government should be prepared to enter into an agreement, or constructive arrangement (which I shall call a ‘treaty’) and under this treaty the issue of our sovereignty as Aboriginal and Torres Strait Islander people shall be addressed to our satisfaction and to the satisfaction of the Australian Government. The agreement will focus upon the fundamental and essential rights that we hold at the Indigenous Peoples. The Declaration provides the platform for those rights.

• The agreement will establish just and fair procedures for adjudicating disputes between the Australian Government and the Aboriginal and Torres Strait Islander peoples. I can envisage here a process modelled upon the Waitangi Tribunal in New Zealand but where the final decision rests with an authority, in lieu of a Minister of the Crown, who is an Aboriginal or Torres Strait Islander person chosen by Aboriginal and Torres Strait Islander people.

• In relation to our ownership of our territories all territories held as Aboriginal territories should come under one title, a form of land title agreed between the Australian Government and the Aboriginal People. Similarly all Torres Strait Islander territories including the Torres Strait shall come under one form of land title.

• Disputes within Aboriginal territories or TSI territories between members of the indigenous population should be resolved by an indigenous institution specifically established for that purpose. This process will eliminate the need to disclose specific information of individuals to the Australian Government.

• In all States and Territories of Australia there shall be set a minimum area of territority to be identified as Aboriginal Territory or TSI Territory, but ensuring that the minimum is uniformly available across all local areas. The minimum amount would be negotiated. Statistics show that Aboriginal people in Western Australia, Northern Territory and South Australia have ownership or control over 25% of the total land mass. However in the the four eastern States the Aboriginal or Torres Strait Islander people who make up 66% of the total indigenous population only have control of 3% of the land. New South Wales, Australian Capital Territory, Victoria and Tasmania only have 0.4% of the land.

• Associated with the programme of redress for territories taken without the free, prior and informed consent there should be compensation, including financial payments, made to Aboriginal and Torres Strait Islander people, through their institutions, for the past, present and ongoing exploitation of territories through mining, infrastructure development, bio-prospecting or other forms of wealth extraction.

• Aboriginal governments in communities should have all the powers of self-determination and not be limited to local government functions or mainstream government. This means that essential services such as health, shelter, law enforcement and education should be delivered via indigenous institutions. Accordingly indigenous systems of accountability and community engagement will be needed.

Having proposed these extraordinary ideas let me tell you what is unsustainable in the present system.

The government cannot continue control our people through partisan politics, discriminatory regimes, incompetent bureaucrats, centralised controls, fringe policies and manifest neglect. Especially, there cannot continue to be an inadvertent long-term strategy to assimilate us as mainstream Australians.

There may well be people of Aboriginal descent or Torres Strait Islander descent who want to enjoy equality as Australians and are prepared to forego their identity in community with other Aboriginal and Torres Strait Islander people. However those individuals should not be allowed to dictate policies for our people.

Many of us see for ourselves, our children and our future generations a continuation of our existence as the Aboriginal and Torres Strait Islander people of this land, with a distinct culture. We will always be the first peoples and custodians of this country.

We cannot afford for government to be confused between the two separate outcomes or allow the politicians and social commentators to use the two completely different aspirations to deny our right to self-determination as Indigenous Peoples.

It is unacceptable that Native Title procedures have reverted to re-establish the concept of terra nullius for the convenience of developments and exploitations of indigenous lands and resources.

Future acts and the right to negotiate are lesser rights than free, prior and informed consent. Any proposals for developments on our territories or exploitation of our resources must comply with the right of free, prior and informed consent.

Native Title law and procedures are not the mechanisms to return control of our territories to us. Native Title cannot continue to place the onus of proof upon us before we are able to exercise and enjoy our rights and freedoms.

The courts that sit in judgement on our cases must be trained in international law and human rights standards, particularly the rights of Indigenous Peoples. The laws under which the courts preside must conform or be compatible with the rights of Indigenous Peoples. Otherwise we need new structures for the administration of justice to the Aboriginal and Torres Strait Islander peoples.

As self-determining peoples we must have our own institutions to promote and protect our rights as Indigenous Peoples. The NTRB and NTS, as structures, are failing us, though they are not to blame for the shortcoming of the procedures. We need advocacy. We need opposition to the centric policies of government. We need a capacity to unite and fight. Unless this system changes we will have no voice to negotiate effectively with government.

Once again I say, it is time to take the next steps after Mabo to achieve our inherent rights as the first peoples of Australia.

In conclusion, I again pay my respects to Koiki Mabo and wonder how crazy this all sounds; was it as crazy as it sounded in the early 1980s? I show my respects as best as I can with the message that I carry. It is time for the Australian Government to enter into negotiations with the Aboriginal and Torres Strait Islander people to reach agreement on land rights and the rights of Indigenous Peoples.

I also thank once again the organisers for giving me the opportunity to talk about our rights as Indigenous Peoples.

Thank you.