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Speech: Indigenous Issues in the Durban Review (2009)

Race Race Discrimination

Indigenous Issues in the Durban
Review

Tom Calma

Aboriginal and Torres Strait Islander Social Justice
Commissioner and Race Discrimination Commissioner

Australian Human Rights Commission

Castan Centre Public Forum: 'Can the UN Combat
Racism’

A preview of the Durban Review
Conference

Melbourne

20 February 2009


In September 2001, after a gap of 18 years the United Nations finally held
the third World Conference against Racism, Racial Discrimination, Xenophobia and
Related Intolerance in Durban, South Africa.

For many groups who are discriminated against on the grounds of race on a
daily basis, it was the first opportunity they had to highlight their concerns
on the world stage - as no other UN World Conference that was held in the 1990s
had allowed them to do.

In many ways, the Durban Conference lived up to its potential by shining the
spotlight on some of the most world’s disadvantaged groups. To name a
few, this included the Dalits and other groups discriminated against on the
basis of caste, or descent; the Roma/Gypsy/Sinti/Traveller communities; and the
descendants of victims of the transatlantic slave trade.

The international visibility the Durban Conference brought to these
groups’ issues led to some positive developments. As we have heard, the
Durban Conference proposed a range of measures including stopping the slave
trade, preventing genocide and combating the continuing effects of colonialism
and colonialist ideas perpetuating racial discrimination.

And since the Conference there have been some important developments too. For
example, in 2002, the Committee on the Elimination of Racial Discrimination
issued a General Recommendation on discrimination against descent-based
communities.

So I wanted to highlight tonight that when we talk about the Durban
Conference and its forthcoming Review we are talking about a wide range of
issues affecting many disadvantaged groups.

Tonight, however, I was asked to bring into this discussion on the Durban
Review the issues faced by another disadvantaged group that are commonly
discriminated against on the grounds of race, namely Indigenous peoples.

I will explore firstly, what developments Indigenous peoples have seen emerge
through the Durban Conference; secondly, to what extent the Durban Conference
outcomes have been implemented for Indigenous peoples in Australia; and thirdly,
what measures need to be put in place through the Durban Review to protect
indigenous peoples’ rights.

Indigenous peoples and the Durban Conference

Internationally, the outcomes of the World Conference on racism, racial
discrimination, xenophobia and related forms of intolerance (2001)
(‘Durban conference’), in relation to indigenous peoples were
mixed, with some positive outcomes and some provisions that were regressive, as
a result of the limited participation of indigenous peoples in the negotiation
of the Durban Declaration and Program of Action.

On the positive side, the Durban Declaration states unequivocally that the
full realisation by indigenous peoples of their human rights and fundamental
freedoms is indispensable for eliminating racism and expressed determination
‘to promote [indigenous peoples’] full and equal enjoyment of civil,
political, economic, social and cultural rights, as well as the benefits of
sustainable development, while fully respecting their distinctive
characteristics and their own
initiatives’.[1]

However, on the negative side, the outcome documents did not adequately
reflect human rights standards as they should relate to indigenous peoples. The
strong declaratory statements and standards contained in the Declaration were
not met by commitments in the Program of Action. For example, the outcome
documents qualified recognition of indigenous peoples as
‘peoples’.[2]

In assessing the Durban outcome documents and how strategies have been
implemented, it is necessary to ensure that:

  • indigenous peoples’ rights are adequately respected and
  • any previous or current endorsements of racism, racial discrimination or
    xenophobia against indigenous peoples, are
    removed.

Australia’s implementation of the Durban
Conference outcomes for Indigenous Peoples

Within Australia, I would argue that not enough has been done to implement
the Durban Conference outcomes, particularly in relation to Indigenous peoples.

The first area of concern in this regard has been the suspension of the Racial Discrimination Act 1975 (Cth) (Race Discrimination Act)
from the Northern Territory Emergency Response (NTER).

This intervention strategy was introduced by the Australian Government in
2007 to protect Aboriginal children in the Northern Territory from sexual abuse
and family violence.[3]

However, in my Social Justice Report 2007 I assessed the
Intervention’s compliance with Australia’s human rights obligations
and found that:

  • the Government did have an obligation to promote and protect the right of
    Indigenous peoples to be free from family violence and child abuse.
  • the NTER legislation is inappropriately classified as a ‘special
    measure’ under the Race Discrimination Act because of the negative impacts
    of some of the measures on Indigenous people and the absence of adequate
    consultation or consent by Indigenous peoples to the measures.
  • the NTER legislation contains a number of provisions that are racially
    discriminatory.
  • some provisions raised concerns for the compliance with human rights
    obligations (e.g. the lack of access to review of social security matters and
    the compulsory acquisition of land without just
    compensation).[4]

The ease
with which the Race Discrimination Act has been set aside highlights the weak
status of protections against race discrimination in the Australian legal
system. As indicated by the Committee on the Elimination of Racial
Discrimination underlying this weakness is the absence of any constitutional
protection against race discrimination and the absence of a federal Human Rights
Act.[5]

The Northern Territory Emergency Response Review Board (‘Review
Board’) reviewed the NTER and issued its report in October 2008. The three
overarching recommendations made were:

  • the continuing need to address the unacceptably high level of disadvantage
    and social dislocation being experienced by Aboriginal Australians living in
    remote communities throughout the Northern Territory;
  • In addressing these needs both the Commonwealth and NT governments
    acknowledge the requirement to reset their relationship with Aboriginal people
    based on genuine consultation, engagement and partnership; and
  • Government actions affecting Aboriginal communities respect
    Australia’s human rights obligations and conform to the Racial
    Discrimination Act 1975
    .[6]

On 23 October 2008, the federal government issued an initial
response to the Review Board’s
report,[7] outlining the
government’s intention to continue the current stabilisation phase of the
NTER for the next twelve months before transitioning to a long-term, development
phase. The government has indicated it will introduce legislation to lift the
suspension of the Race Discrimination Act in the Spring 2009 sittings of the
Parliament.

The second area where I see a lack of implementation of the Durban Conference
outcomes is in the significant inequalities Aboriginal and Torres Strait
Islander peoples continue to experience in the realisation of their rights.

There is an estimated gap of 17 years between Indigenous and non-Indigenous
life expectancy.[8] There are a range
of other social and economic inequalities including lower incomes, higher rates
of unemployment, poorer educational outcomes and lower rates of home
ownership.[9] For example, in 2001 the
unemployment rate for Indigenous peoples was 20% - three times higher than the
rate for non-Indigenous Australians, and this situation has not substantially
changed.

At the Indigenous Health Equality Summit in 2008, the Australian Government
made accountable and measureable commitments to achieving equality in health
status and life expectancy between Indigenous and non-Indigenous Australians by
2030.

The Council of Australian Governments has similarly committed to closing the
life expectancy gap within a generation, halving the mortality gap for children
under five within a decade and halving the gap in reading, writing and numeracy
within a decade.

But the UN Human Rights Committee has recognised that the high level of
exclusion and poverty facing indigenous persons is indicative of the lack of
adequate protection of indigenous peoples’ cultural
rights.[10]

The third area of limited progress has been in
Indigenous representation and participation in decision-making.

The Social Justice Reports from 2004-2006 outline a reduction in
Indigenous people’s participation in decision-making bodies since the
abolition of the Aboriginal and Torres Strait Islander Commission (ATSIC) and
within the ‘new arrangements’ for the administration of Indigenous
Affairs subsequently put in place by the Australian Government. I have
particularly noted the absence of processes for systematic engagement with
Indigenous people under the new
arrangements.[11]

The new Australian Government has made a commitment to set up a new national
representative body to provide an Aboriginal and Torres Strait Islander voice
within government. To this end, the Australian Government has begun formal
discussions with Indigenous people about the role, status and composition of
this body.

On 16 December 2008 the Minister for Indigenous Affairs, Jenny Macklin,
announced that the second stage of consultations would be guided by Indigenous
peoples. To further that process, the Minister invited the Social Justice
Commissioner to convene an independent Indigenous Steering Committee to develop
a model for a new national Indigenous representative body.

The Minister has mandated the Steering Committee to engage with and consult
Aboriginal and Torres Strait Islander peoples across the country, in order to
gain feedback on the Indigenous community's preferred model for a national
Indigenous representative body, by July 2009.

The fourth area of concern
has been Indigenous people’s over-representation in the criminal justice
system.

There continue to be high levels of incarceration of Indigenous people,
particularly women and children, and the over-representation of Indigenous
people in prisons and juvenile justice facilities.

Indigenous prisoners represented 24% of the total prisoner population at 30
June 2006, the highest proportion since 1996; and only 5% of Australians aged
10-17 years are Indigenous, but 40% of those aged 10-17 years under juvenile
justice supervision were
Indigenous.[12]

There is a pressing need for the continued implementation of the 339
recommendations contained in the Report of the Royal Commission into Aboriginal
Deaths in Custody, including any outstanding
recommendations.[13] A comprehensive
response to the issues raised by this report requires government commitment in
two key areas:

  • ongoing community justice mechanisms which recognise Indigenous governance
    models and return control and decision-making processes to Aboriginal and Torres
    Strait Islander communities
  • measures to address the impact of Indigenous marginalisation and
    socio-economic disadvantage on Indigenous peoples’ contact with the
    criminal justice
    system.[14]

There
are several other areas of concern I could highlight including:

  • the over-representation of Indigenous children and youth in child
    protection systems;
  • the failure to implement the remaining recommendations of the Bringing
    them Home Report of the National Inquiry into the Separation of Aboriginal and
    Torres Strait Islander Children from Their Families (1997) – in particular
    the provision of monetary compensation; and
  • the lack of government action taken to promote and protect Indigenous
    languages, as a result of which only a third of the original 300 languages
    survive today.

However, I shall conclude this section by commenting
quickly on the problems with the Native Title system.

The Native Title Act 1993 (Native Title Act) is the primary mechanism
through which Aboriginal and Torres Strait Islander people access their cultural
rights to land.[15] The Act was
intended to advance and protect Indigenous people by recognising their
traditional rights and interests in the
land.[16] However, the Native Title
Act has been drafted and interpreted such that native title rights will only be
recognised in very limited circumstances. For example:

  • The courts require that Indigenous people claiming native title prove
    traditional laws and customs at sovereignty and their continued observance,
    generation by generation, until today. One of the cruel consequences is that the
    greater the Indigenous peoples were impacted on by colonisation (for example, if
    they were forcibly removed from their land), the more unlikely it is they will
    be able to access their native title rights.
  • Indigenous peoples bear the burden of proof and strict rules of evidence
    apply. The result is that Indigenous peoples of a culture based on the oral
    transmission of knowledge, must prove every aspect, including the content of the
    law, and custom and genealogy, back to the date of sovereignty (up to almost 200
    years) in a legal system based on written evidence. There is very limited
    flexibility for the court to take into account cultural differences in hearing
    the case.
  • Only traditional laws and customs of Indigenous peoples’ that existed
    at the time of sovereignty and which are still observed and practiced today will
    be recognised. There is little room for adaptation of the traditions to today.
    Similarly, the rights recognised are severely limited in terms of how the
    Indigenous peoples can utilise any resources associated with that land for
    economic or social benefit.

Native
title is at the bottom of the hierarchy of proprietary rights in Australia.
Through the Native Title Act, native title rights and interests are regularly
permanently extinguished by overriding government and private interests.

In 1999, acting under its early warning procedures, the Committee on the
Elimination of Racial Discrimination considered amendments to the Native
Title Act 1998
(Cth) and expressed concern over their compatibility
with Australia’s international obligations under the Convention on the
Elimination of All Forms of Racial Discrimination.

The Committee noted several provisions that discriminate against Indigenous
title holders under the newly amended
Act.[17] These issues have remained
unaddressed and the Committee has repeated its concerns in the 2000 and 2005
Concluding Observations.[18]

Durban Review – protection for
indigenous peoples’ rights

The final aspect I will reflect on tonight is what measures need to be put in
place through the Durban Review to protect indigenous peoples’ rights.

It should be noted that since the Durban conference the international
community has advanced its understanding of the application of human rights
standards to indigenous peoples, primarily through the adoption of the UN
Declaration on the Rights of Indigenous Peoples
.

The UN Declaration on the Rights of Indigenous Peoples (‘Declaration’) is now considered to provide the minimum standards
for the human rights of indigenous peoples.

The Durban Review should consider the following with respect to indigenous
peoples’:

  • Reflecting the recognition of the UN Declaration on the Rights of
    Indigenous Peoples
    in the Durban review Outcome documents; and
  • Removing the qualification of indigenous peoples as ‘peoples’
    in light of the Declaration’s recognition of indigenous peoples as
    ‘peoples’.

The UN Expert Mechanism on the Rights of
Indigenous Peoples, in its first session (2008), called for the UN
Declaration on the Rights of Indigenous Peoples
as to be recognised in the
Durban Review outcomes
documents.[19]

The UN Permanent Forum's Indigenous Issues in its seventh session (2008)
requested the UN system, which includes the Durban Review, to consider
implementation of the UN Declaration on the Rights of Indigenous Peoples.
These recommendations included:

  • promoting the Declaration and applying it in policies and programmes for
    the improvement of indigenous peoples’ well-being around the world.
  • ensuring that the Declaration reaches indigenous peoples in their
    communities by appropriate dissemination of the text in indigenous
    peoples’ own languages
  • promoting understanding of the United Nations Declaration on the Rights of
    Indigenous Peoples among decision makers, public officials, justice systems,
    national human rights institutions and non-governmental organizations.
  • building the capacities of indigenous peoples’ organizations and to
    develop their knowledge and skills to have their rights respected, protected and
    fulfilled.
  • establishing specific units for indigenous peoples’ issues to
    contribute to the implementation of the Declaration in accordance with its
    articles 41 and
    42.[20]

Concerns have
been reiterated by Indigenous peoples in the Durban Conference preparatory
sessions, as recently as this week, that the current draft outcomes documents
“not only ignore the rights of indigenous peoples to self-determination,
but go in the direction of encouraging assimilation into the national political
system”. There is a concern that the draft outcome documents are
insufficient for addressing the racial discrimination against indigenous
peoples.

At a domestic level, the promotion of Indigenous people’s rights could
be advanced through:

  • recognition of Indigenous peoples’ rights by governments – and
    the Australian Human Rights Commission has also called on the Australian
    Government to make a statement of support at the UN for the United Nations
    Declaration on the Rights of Indigenous Peoples
    as a matter of priority;
  • restitution and where that is not possible compensation for lost lands and
    for disruption and destruction of indigenous society;
  • acknowledgement of and compensation for past injustices as the basis for
    genuine reconciliation and co-existence;
  • entrenchment of non-discrimination through Constitutional or Treaty
    provisions;
  • adequate funding and resources to overcome indigenous social and economic
    disadvantage;
  • education, training and public information programs to counter prejudice
    and discrimination against indigenous peoples; and
  • laws to prohibit the dissemination of racist and hate material.

In conclusion, I have outlined some of the limitations that have
come about for indigenous peoples as a result of the 2001 the Durban Conference
and how it has been implemented.

I have also noted my concerns about the Durban Review draft outcome documents
and the extent to which indigenous people’s rights are being recognised
and protected within them.

However, the Durban Review can nonetheless be an important source of
protection for indigenous peoples’ rights. And there are important
measures that can be taken at both the national and international level, key to
which will be recognition and implementation of the UN Declaration on the
Rights of Indigenous Peoples
.


[1] World Conference against
Racism, Racial Discrimination, Xenophobia and Related Intolerance, Declaration (2001), para 41. At http://www.un.org/WCAR/durban.pdf (viewed 13 February 2009).

[2] World Conference against
Racism, Racial Discrimination, Xenophobia and Related Intolerance, Declaration (2001), para 24. At http://www.un.org/WCAR/durban.pdf (viewed 13 February 2009).

[3] Minister for Families,
Community Services and Indigenous Affairs, ‘National emergency response to
protect children in the NT’, (Media Release, 21 June 2007). At: http://www.fahcsia.gov.au/internet/minister3.nsf/content/emergency_21june07.htm (viewed 18 October 2007). The catalyst for the measures was the release of
Report of the Northern Territory Board of Inquiry into the Protection of
Aboriginal Children from Sexual Abuse, titled Ampe Akelyernemane Meke
Mekarle: ‘Little Children are
Sacred’.

[4] The Social Justice Report 2007 is available at: http://www.humanrights.gov.au/social_justice/sj_report/sjreport07/index.html (viewed 22 September 2008).
[5] Committee on the Elimination of Racial Discrimination, Consideration of
Reports Submitted by States Parties under Article 9 of the Convention Concluding
observations of the Committee on Australia
(2005), CERD/C/AUS/CO/14;
Committee on the Elimination of Racial Discrimination, Sixty-sixth session, 21
February-11 March
2005. 
[6] Northern Territory
Emergency Review Board, Northern Territory Emergency Response: Report of the
NTER Review Board
, Commonwealth of Australia (2008), p 12.

[7] Commonwealth Government,
Statement: ‘Australian Government Initial Response to the NTER
Review’ (23 October 2008).

[8] These issues are discussed in
detail in the Social Justice Report 2003, available at: http://www.humanrights.gov.au/social_justice/statistics/index.html (viewed 9 September 2008); Australian Institute of Health and Welfare and
Australian Bureau of Statistics, The Health and Welfare of Australia's
Aboriginal and Torres Strait Islander Peoples 2005
, available at: www.aihw.gov.au/publications/ihw/hwaatsip05/hwaatsip05.pdf (viewed 9 September 2008); Australian Institute of Health and Welfare, Australia's Health No.11, 2008, available at: http://www.aihw.gov.au/publications/aus/ah08/ah08-c03.pdf (viewed 9 September 2008).
[9] ICCPR, art 2(1).
[10] Human
Rights Committee, Concluding observations: Australia, 24/07/2000UN Doc
A/55/40, paras.498-528 (available at:
http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/e1015b8a76fec400c12569490…)

[11] These issues are noted in the Common Core Document at pars 181-183. See also
Australian Human Rights Commission, Building a National Indigenous
Representative Body – Issues for Consideration
, available at: http://www.humanrights.gov.au/social_justice/repbody/index.html (viewed 23 September 2008).
[12] Australian Bureau of Statistics, Prisoners in Australia 2006. At: http://www.abs.gov.au/ausstats/abs@.nsf/ProductsbyReleaseDate/BA368B46230A4118CA2573AF0014B905?OpenDocument (viewed 23 September 2008). Australian Institute for Health and Welfare, Juvenile Justice National Minimum Data Set 2005-06: Facts and figures.
At: http://www.aihw.gov.au/phjj/juvenilejustice/facts_and_figures.cfm(viewed 23 September 2008).
[13] See Common Core Document, pars
285-288.
[14] See the findings of
the Cooperative Research Centre for Aboriginal Health regarding the links
between preventing recidivism and improving the social, emotional and cultural
wellbeing of Aboriginal people: Cooperative Centre for Aboriginal Health
Research, Research Priorities in Aboriginal Prisoner Health: Recommendations
and Outcomes form the CRCAH Aboriginal Prisoner Health Industry Roundtable,
November 2007
, Discussion Paper Series No. 6, August 2008.
[15] See Common Core Document,
pars 127-135. ICCPR, arts 1, 2(1),
27.
[16] See the preamble to the Native Title Act 1993 (Cth).

[17] These provisions included:
validation provisions; the confirmation of extinguishment provisions; the
primary production upgrade provisions; and restrictions concerning the right of
indigenous title holders to negotiate non-indigenous land uses: Committee on the
Elimination of Racial Discrimination, Decision 2 (54) on Australia (18/03/1999), UN Doc A/54/18, par 21(2). At: http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/a2ba4bb337ca00498025686a005553d3?Opendocument (viewed 23 September 2008).
[18] Committee on the Elimination of Racial Discrimination, Concluding
Observations: Australia
(2005), UN Doc CERD/C/AUS/CO/14, par 16. At: http://www.bayefsky.com/docs.php/area/conclobs/treaty/cerd/opt/0/state/9/node/3/filename/australia_t4_cerd_66 (viewed 23 September 2008). The Human Rights Committee and the Committee on
Economic Social and Cultural rights also noted their concerns on these issues in
2000 (Committee on Economic social and Cultural Rights, Concluding
Observations of the Committee on Economic, Social and Cultural Rights: Australia
(01/09/2000), UN Doc E/C.12/1/Add.50. At: http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/693c56f3d2694130c12569580039a1a2?Opendocument (viewed 23 September 2008); Human Rights Committee, Concluding observations
of the Human Rights Committee: Australia
(24/07/2000), UN Doc A/55/40, pars
498-528. At: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/e1015b8a76fec400c125694900433654?Opendocument (viewed 23 September 2008))
[19] Human Rights Council, Report of the Expert Mechanism on the Rights of
Indigenous Peoples on its First Session (1-3 October 2008)
, UN Doc
A/HRC/10/56 (2009). At
http://www2.ohchr.org/english/issues/indigenous/ExpertMechanism/1st/doc…
(viewed 31 January 2009).

[20] Permanent Forum on Indigenous Issues, Report on the seventh session (21 April-2 May 2008), UN Doc E/2008/43, E/C.19/2008/13 (2008). At
http://daccessdds.un.org/doc/UNDOC/GEN/N08/338/82/PDF/N0833882.pdf?Open…
(viewed 31 January 2009).