Castan Centre for Human Rights Law

"Indigenous Self-Determination in the Age of Globalisation"

Professor Larissa Behrendt

Ron Castan had always understood the oppression of his own people did not exclude reflection on the oppression of others. He never saw consideration of non-Indigenous complicity in the impacts of colonization of Aboriginal and Torres Strait Islander people as in any way lessening Jewish experience with anti-Semitism and genocide. He refused to rank people in order of hurt and suffering and appeared to have reached this point by realizing the interconnectedness of peoples and that the oppression of one group can have resonance for the experience with oppression of another. It is with this spirit of self-reflection and inter-relation, so much a part of the Castan legacy, that I would like to deliver this paper.
I have divided this paper into two parts. First, I want to look at self-determination as a concept as it has been expressed by Indigenous peoples. Then, I want to look at the trends of globalization and how this will affect those aspirations.

I. The concept of Indigenous Self-Determination
Indigenous communities are diverse in culture and circumstance, and their needs different. Communities that are enclaves within urban areas, finding themselves a sub-group of a larger, non-Indigenous political unit, have different political needs and strategies to Indigenous communities living in remote and distinct geographical areas where they may already be engaged in initiatives that can be categorized as decentralized self-governing actions. Aspirations will be specific to small communities - need of a medical center or a doctor, a school - but there is also a broader vision of the relationship that is sought with Australian society and it's institutions that is expressed when needs are articulated.
Despite these cultural and geographical differences, there is much common ground in answers to the questions: "What do you want?" "When you say 'Aboriginal sovereignty' what do you mean?" and "What do you want in a treaty?" The following conclusions seek to find the common ground that further and broader consultations within the Indigenous community may reveal.
If we look at the contents of the Barunga statement, the Eva Valley statement. Patrick Dodson's 4th Vincent Lingiari Memorial Lecture, 'Until the Chains are Broken', we can see the parameters of the claims in a spectrum of rights. The rights enmeshed in the concept of "self-determination" includes, I would argue, everything from the right not to be discriminated against, the rights to enjoy language, culture and heritage, our rights to land, seas, waters and natural resources, the right to be educated and to work, the right to be economic self sufficient, the right to be involved in decision-making processes that impact upon our lives and the right to govern and manage our own affairs and our own communities.
These rights that can be unpacked from the concept of "self-determination" point to a vision that has been described as 'internal self-determination'.2 It sees increased Indigenous autonomy within the structures of the Australian state. The challenge to Australia is to alter our institutions to incorporate that vision.
The right to self-determination is recognized under international law in Article 1 of both of the canonical human rights documents, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Although the right is clearly recognized in these two instruments, there is much debate about the application of the content of self-determination as it applies to Indigenous people.
I would argue, in light of what I have already said, that we, as Indigenous peoples, do not need to feel confined by the semantic debates under international law. Rather, the key to the way forward is in the concepts and rights that we have implied into the terms "self-determination" and "sovereignty" when we use those words to describe a vision of what we would like our communities to be like and the way we want to live our lives as Indigenous peoples.
This is an approach that takes the starting point for self-determination from the way in which it is expressed by Indigenous peoples at a grass-roots level, rather than by imposing concepts as they have been developed in international forums on to Indigenous communities. It is a bottom-up, rather than top-down approach.
This debate shows the way that international concepts can be transformed and take on new meaning in the domestic political sphere for the furtherance of rights protections in a way that is not reliant upon active international intervention. However, from the previous discussion we can see the way in which international law has been an especially useful tool for describing aspirations, even though these concepts have been adopted for the domestic arena.
It also shows the use of rights as a language of communication. An example of this can be found in the 1997 case of Kruger v. The commonwealth (1997).3 This was the first case to be heard in the High Court that considered the legality of the formal government assimilation-based policy of removing Indigenous children from their families. In Kruger, the plaintiffs had brought their case on the grounds of the violation of various rights by the effects of the Northern Territory Ordinance that allowed for the removal of Indigenous children from their families. The plaintiffs had claimed violations of the implied rights to due process before the law, equality before the law, freedom of movement and the express right to freedom of religion contained in s.116 of the constitution. They were unsuccessful on each count, a result that highlighted the general lack of rights protection in our system of governance and the ways in which, through policies like child removal, there was a disproportionately high impact on indigenous people as a result of those silences.
What we can also see in the Kruger case is the way that the issue of removal - seen as a particularly Indigenous experience and a particularly Indigenous legal issue - can be expressed in language that explains what those harms are in terms of rights held by all other Australians.
This should not be read as implying that the international human rights regime has no place in the discussions about the rights included in the concept of "self-determination". In the absence of specific protections within our legal system to prevent human rights violations, human rights developed under international law become not only a language to communicate with but a standard against which our record can be measured. It is the reporting and monitoring mechanisms under international law that have created the most effective method of monitoring human rights in Australia.
A recent example of this role can be seen in the United Nations Committee on the Elimination of all forms of Racial Discrimination when it last year issued a report claiming that our country, and our government, had failed to meet certain obligations that we, as a nation, have agreed to uphold under the Convention to Eliminate all forms of Racial Discrimination. The Committee's report expressed concern about the absence of any entrenched law guaranteeing against racial discrimination, provisions of the native title amendment act of 1998, the failure to apologize for the stolen generations and its refusal to interfere to change mandatory sentencing laws.
The Federal Governments indignant response to the report is to be noted as it signals an emerging resentment towards external monitoring of human rights standards. The report was labeled as unbalanced and unfair and criticized for relying too heavily on the advice of non-government organization. We are not, the government asserted, bound by the United Nations. Indeed, a country like ours is capable of looking after our own affairs and, they added sincerely, we have a good record on human rights. We are capable of determining our own appropriate standards of human rights, we do not need the international community to do it for us.
As I have said, I would assert, that it is precisely because our domestic arena contains so few avenues of rights protection that we will need to rely on the developing norms and standards of international law in order to hold governments accountable for their actions. This antagonism towards outside interference in domestic matters stands in stark contrast to the internationalization of trade policy and the embrace of neo-liberal economic policy that has seen increased interference with domestic matters through trade agreements.

II. Globalization and the Rights of Indigenous Peoples
This turns me to the second part of the talk as I can see trends in globalization that seem to conflict or intersect with Indigenous rights as they have been described in the notions of self-determination.
Many of the elements that neo-liberal economic policy has altered have been the same characteristics that Paul Kelly has identified as part of the Australian "settlement"4: wage protection, trade protection, imperial benevolence and restricted immigration. These elements each highlight the historical mistreatment of Indigenous people and our exclusion from the dominant culture and mainstream society.
The notions of wage protection and trade protection, the ideology of protecting jobs and industry for Australians, can be juxtaposed to the history of unequal wages paid to Indigenous people. Support of industry protection, particularly through tariffs, can be seen as a reflection of the power of industries such as the pastoral and mining industries and a reminder of their power in any determination of how the rights of Indigenous people will be recognized and protected (or not). State paternalism and imperial benevolence have resulted in policies inspired by an embrace of cultural genocide and assimilation, resulting in practices such as Indigenous dispossession and the removal of children from their families. As xenophobia is born from ideologies of white racial superiority, immigration restrictions have served to highlight the ideologies of racial superiority that have meant separate and disparate treatment of Indigenous people. They have also highlighted the hypocrisy of an invading culture that then closes the door on others who seek to build their futures on the same stolen soil.
Neo-liberalism has challenged many of the traits that have been seen as tied to our national identity particularly in relation to our history of protectionism, benevolence of the state and the restriction on immigration. These past trends, although they may have been embraced as part of the national ethos that symbolize our embrace of egalitarianism also symbolize the impacts of colonization on Indigenous people. Nationalistic ideologies have no small role to play in maintaining that power structure and this is evident in the way that many of the aspects of the "Australian settlement" are symbolic of Indigenous exclusion.
Globalization through the implementation of neo-liberal economic policy moves away from many of these trends as it opens up markets, takes away protections and through trade agreements, lessens domestic mechanisms for interference with free trade. Through this agenda, this neo-liberal economic regime is also a challenge to Indigenous peoples, our human rights and our ability to life our lives the way we want to live them, that is, it is a threat to our self-determination. This is so because it is an economic regime unsympathetic to the cultural concerns and specific historical and contemporary legacies facing Indigenous communities as a result of the colonization process.
The cold rationale of neo-liberal economic policy impacts most heavily on sectors of the community that are vulnerable to economic shifts - and the Indigenous community is perhaps the most vulnerable of these. The erosion of hard-won workers rights, the erosion of land rights, degradation of the environment which leads to a loss of cultural heritage and the lack of protection from the agenda's of multinational corporations are just some of the signs of this vulnerability.
We can see from the experience of Indigenous peoples in other jurisdictions that have been exposed to the impacts of multilateral trade agreements for a longer period of time what some of these impacts might be in Australia.
Canadian citizens saw very little debate around the decision by the country to enter into the North American Free Trade Agreement (NAFTA) that noted its impact on human rights. Instead, economic modeling that showed an increased number of jobs in the United States, Canada and Mexico were highlighted as the communal benefits of the scheme.5 The impacts on Canada's ability to regulate in relation to the environment are only now becoming apparent.
In the 1995 case of Antonsen v. Canada,6 the Federal Court declared invalid a decision by the Minister of Fisheries and Oceans to refuse a permit to United States fishing companies who failed to meet Canadian regulations. NAFTA requires signatory parties not to impose export restrictions on goods destined for the territory or other countries. The impact on First Nations people who have Aboriginal or treaty rights to fish are impacted by this decision which effectively restricts the ability of Canada to regulate - and therefore sustain - fish stocks.
An important lesson can be learnt from this experience. In the past, the debate around the recognition and protection of Indigenous rights has been one that has seen the argument as one between Indigenous people and the government. There are clearly other, powerful players in this discussion - multinational corporations - who are perceived as being merely a lobby group behind the government. We need to re-conceptualize the power relationships in these dialogues by seeing the power of multinational corporations as a partner to governments and, in some cases, more powerful than governments.
Although this can seem more daunting than simply having a dialogue between Indigenous people and government, the realization of the power and influence of multinational corporation on the rights of Indigenous people actually offers a broader range of solutions that the old debates between Indigenous peoples and the State.
In practice, we have seen multinational corporations seek to enter into agreements and contracts with Indigenous peoples, side-tracking onerous and politicized processes, to achieve an outcome that both parties find beneficial. Particularly in relation to negotiations about native title, we have seen that industries are keen to work towards practical solutions because they are quicker and more likely to be successful since they have gained the success of all parties involved.
In light of this, it becomes an irony that one of the arguments most often thrown up by the whining right is that issues of self-determination, sovereignty and a treaty are unachievable because of the sanctity of Australia's sovereignty. In circumstances where Indigenous rights are not so overtly involved, particularly in relation to international trade, countries like Australia are not hesitant in entering agreements that will profoundly affect their ability to act as a sovereign nation.
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The way forward is one that moves away from the zealous embrace of neo-liberal economic policy and instead seeks to match economic sustainability with the protection of fundamental rights. It is a model that measures quality of life by considering and valuing non-economic factors such as cultural heritage and environmental protection alongside the economic factors that are taken as indicators of our performance.
I have advocated elsewhere that Indigenous people are the litmus test by which we should measure the performance of our institutions and democratic society. That is, the question that we need to ask ourselves, continually, as a nation, is if our laws and system of governance do not work for the poorest socioeconomic cultural group, one that has experienced historical exclusion, how good are they? This is a measurement that moves us forward in responses to the impact of globalization on human rights of all Australians.
Just as the impacts of an internationalized, neo-liberal economic ideology leads to the infringement of the right to self-determination as Indigenous people see it, so too, through the erosion of State sovereignty, it infringes on the right to self-determination of all Australians. The solutions to these impacts are going to be similar, overlap and, in many cases, the same.
The realization of the interconnection in the impact of globalization on human rights, and through alliance building to counter it, is our best antidote to the divisive politics of politicians who seek to rank the poverty of Indigenous Australians as being in competition with and destructive to the advancement from poverty of white Australians. It is this refusal to rank the harms suffered by one over the harms suffered by another, and the knowledge that oppression is caused by similar forces in different circumstances that will allow us to find the best solutions to preventing or alleviating the harmful impacts of globalization on human rights.

1 Prof. Larissa Behrendt is Professor of Law and Indigenous Studies and the Director of the Jumbunna Indigenous House of Learning at the University of Technology, Sydney. This paper was delivered on Warunjeri land.
2 S. James Anaya. Indigenous Peoples and International Law. Oxford: Oxford University Press, 1996.
3 Kruger v. The commonwealth (1997) 190 CLR 1
4 Paul Kelly. Paradise divided : the changes, the challenges, the choices for Australia. St. Leonards: Allen & Unwin, 2000.
5 David C. Korten. When Corporations Rule the World. West Hartford: Kumarian Press, 1996. At pp.80-82.
6 Antonsen v. Canada [1995] 2 FC 272