Actions Speak Louder Than Words?

In developments in the long running debate on whether there should be Constitutional recognition of Australia's Indigenous Peoples, it now appears a referendum is targeted to be held in 2017.  As one commentator has noted, there is a debate within the Indigenous Peoples of Australia as to the desirability of Constitutional recognition---or whether there should be a recognition of Aboriginal sovereignty. 

One of the first steps in preparing for a referendum is a consultation with representatives of Australian Aboriginal and Torres Strait Islanders to craft language that would be acceptable to them. 

And yet, with this focus on sensitivity to language, it might be something of a surprise that at the same time  it is being reported that "The parliament of Australia's Northern Territory turned down the request by an Aboriginal minister to speak in her Indigenous language." The request follows an incident in December 2015 where "Northern Territory MP Bess Price was ­chided by the Speaker of the Legislative Assembly for an interjection in her mother tongue, Warlpiri".

What value is there is Constitutional recognition versus the value placed on the use of Indigenous languages in daily life and the life of a state? One gives a sort of symbolic recognition, the other is about making space for an active exercise of an existent culture-- the official existence of which continues to be a vacuum in the Constitution. 

Australia: Constitutional Recognition or Treaty?

Whether there should be constitutional recognition of Australia's indigenous peoples is a long-running political debate. On one hand, this kind of recognition is a clear marker of changing thinking that may continue to permeate policies, even though the terra nullius doctrine was over-turned in the 1992 Mabo decision. Some may feel that the legacy of terra nullius lives on in the failure to have Australian Constitutional recognition of indigenous peoples. But as this editorial by Celeste Liddle points out, there is some indigenous opposition to the idea of Constitutional recognition. What is wanted, Liddle  argues, is a level of recognition that transcends that which would be obtained through Constitutional inclusion.

Liddle  notes that "Australia is the only Commonwealth Nation that does not have a treaty with its Indigenous Peoples." 

And having a treaty, she argues, provides a greater form of recognition-- one of sovereignty. Liddle points out the advantages of having a treaty:  "Provisions contained within a treaty could greatly address the current disadvantages faced by many Indigenous people as the government would have obligations to fill including the obligation to consult the community on proposed legislation affecting us."

Recognition of Aboriginal and Torres Strait Islander Peoples in Australia: the Act of Recognition

This blog has discussed in the past the issue of constitutional recognition of Aboriginal and Torres Strait Islander Peoples in Australia, and how a referendum was being called for after an expert panel convened by the government recommended so.

It later discussed how the referendum had failed to gain sufficient momentum, and an Act of Recognition was being considered, with a sunset clause which would bring about the referendum in the foreseeable future. The proposal was soaked in the mud of partisan politics, but that all recently changed, and the Opposition decided to support the legislation. So, in February 13th, the Act of Recognition was finally passed.

The Prime Minister's speech at the signature of the act explains its content and the achievement that the legislation is on its own. Let's now hope that this in fact helps build momentum towards the referendum. Stay tuned for more developments!

Post written by Lucas Lixinski.

Deferring Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples in Australia: When Partisan Politics Really Gets in the Way

This blog has discussed in the past the issue of constitutional recognition of Aboriginal and Torres Strait Islander Peoples in Australia, and how a referendum was being called for after an expert panel convened by the government recommended so. Surprisingly, the referendum met with support from all sides of the political spectrum, including the two major political parties. A campaign went underway, led by You Me Unity (here), an organization created by the government for the purposes of consultation with indigenous groups and also raising awareness to the referendum, so as to guarantee its passage. But work has been slow, and a significant part of the Australia population (61%) is still unaware the referendum is even on the political agenda. Most of this segment of the population is concentrated in rural areas, which are the ones where Aboriginal peoples are more likely to inhabit.

Professor George Williams of the University of New South Wales published an op-ed piece in the Sydney Morning Herald (can be read here) precisely exploring some of these issues, and highlighting the need for popular involvement with the referendum. He even suggests a nationwide popular competition for the drafting of the new preamble, similar to the contest for the design of the Australian flag led in 1901.

As a result of this unforeseen difficulty of raising awareness, and the upcoming federal elections in Australia next year, the current (Labor) government has proposed that the referendum be postponed, and that an “Act of Recognition” be passed instead, making the recognition happen through a federal statute initially. This Act of Recognition would then contain a sunset clause, determining that a referendum be held within three years of the act’s passage.

The Act of Recognition strikes me as an elegant solution because it would pass much more quickly (it only requires voting in the two federal legislative houses, as opposed to referenda in all eight states and territories), and also because it would bind the next government (regardless of who wins the election) to really go through with the referendum. It also importantly buys more time to build consensus around the country.

But then the opposition (Liberal) leader went on to criticize the government’s move, saying it is inadmissible that the current government may seek to bind the following government to go through a referendum process. I see two possible (and not mutually exclusive) explanations for this move. The first one is a principled approach from the Liberal opposition to having the Labor government command them even after it (possibly) stops being the government (polls indicate a slight edge for the Liberals to win the next election). This possibility also speaks to the cheap political game in Australia, where the opposition spends its time decrying every single act by the government out of principle, regardless of the acts merits. After all, if the opposition supported the referendum, and wants constitutional recognition to go through, why would it oppose what is considered to be the best strategy to do so?

This leads to the second possibility: the opposition is in fact not interested in constitutional recognition, and is pushing for the referendum to happen before the elections so the referendum will fail, as You Me Unity suspects it will if the referendum is done now.

Regardless of what the reason is for the opposition’s reaction to the Act of Recognition, the fact of the matter is that the recognition of Aboriginal and Torres Strait Islanders peoples in Australia is long, long overdue, and that petty politics should give way to the greater good of peoples who have already endured colonization and are now deeply marginalized and disenfranchised. Constitutional recognition is an essential first step in making amends and allowing these peoples to flourish in Australia, their country.

Post written by Lucas Lixinski.

Twenty Years after Mabo

There is a great deal in the news about the twenty year anniversary of the Mabo decision from the Australian High Court. The Mabo case was a landmark decision that challenged the legal fiction that Australia was uninhabited at the time of “discovery. Thus as a place that was terra nullius claim was made to the land on that basis. This of course utterly denies the existence of the Aboriginal peoples that were there. Scholar William Wallace comments on key elements of the Mabo holding:

“The two most important and dispositive findings made by the court were, first, that the title was never effectively extinguished by the Crow, and second, that the land was been continuously held from some date prior to the discovery by Captains Cook and Phillips...The holding of Mabo II represents the culmination of small steps of policy change, which led to the judicial recognition of a legal concept, native title, that had been denied by the declaration of “terra nullius” some 157 years prior.”

The idea of native title is seen as an improvement over a legal doctrine that denied the very existence of Aboriginal people. But in the celebrations over the very important Mabo decision, sight should not be lost of the fact that there are problems in the exercise of claims of native title.

An interview with Les Malezer of the Australian Congress of Australia's First Peoples can be read at this link. He makes the claim that in fact native title is a “sell out”. The process of making native title claims is seen to be cumbersome and unworkable, and the reach of the law not sufficient to provide sufficient resolution to land claims. Moreover, he raises a caution about the way in which payments are being made through agreements with “extractive industries”:

“..extractive industries are trying to be positive about this to ensure that benefits are deriving from it. But one thing we know for sure that's happening under these agreements is that the benefits are not economic development, they are one-off payments and they're unlikely to survive a generation.”

Recommendations that were issued after the Special Session of the UN Permanent Forum on Indigenous Issues denounce the use of the terra nullius doctrine and comments on proposals for an international rather than domestic venue to deal with indigenous land claims:

“The Permanent Forum welcomes the recommendation to establish a voluntary international mechanism to receive and consider communications from indigenous peoples specifically concerning their claims to, or violations of, their rights to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. This recommendation deserves further elaboration by indigenous peoples and others concerned.”

Thus, while the Mabo decision certainly should be celebrated, the need for continued efforts to satisfactorily address the legacy of terra nullius and the doctrine of discovery is great. Is this something that should be left to state/domestic jurisdictions or is it more appropriately dealt with as an international matter? Many issues remain to be resolved twenty years after Mabo.

Forced and Involuntary Removal of Children

In an earlier blog post, I began to address the complex topic of the intercountry adoption of indigenous children from Guatemala as one aspect of the occurrences of forced removal that is denounced by the UN Declaration on the Rights of Indigenous Peoples. This blog post picks up the topic again, looking at the practices of forced removal of children.

Involuntary or forced removal of children is not a new phenomenon or something that has been done only to indigenous children. There are historic and current examples of removal of children who are on the margins of society.
Researcher Tobias Hubinette comments on this in his chapter “From Orphan Trains to Baby Lifts: Colonial Engineering, Empire Building and Social Engineering” in the book “Outsiders Within: Writing on Transracial Adoption” published by South End Press. He comments (pg 141):

“The closest parallels to international adoption in the history of global child migration would be the 130,000 children shipped from the British Isles to populate the Empire between 1618 and 1967, and the 1000,000 American children transported by the “orphan train” from the East Coast and placed out to substitute parents in need of labor in the Midwest between 1854 and 1929.”

Removing children from their families and communities can have the devastating and obvious impacts—breaking up family units and destruction of community structures. But the harms go further and deeper. It is one way to attempt to eradicate a group if not physically then culturally. As an African-American social worker friend and former colleague once remarked to me, the most effective way to bring an end to a group of people is to take their children. The National Association of Black Social Workers (USA) has a position paper that outlines the concerns that arise due to disparate treatment of African-American children in the US foster care system and the importance of children maintaining links with their culture and community.

Forced removal of indigenous children has been given a high profile. The 2002 film "Rabbit Proof Fence" addresses forced removal of children in Australia. The ongoing Canadian Truth and Reconciliation Commission addresses the forced removal of children to residential boarding schools. And the 1979 US federal Indian Child Welfare Act was passed in order to address the high rates of forced removal of indigenous children.

Intercountry adoption is another way in which forced removal of indigenous children has occured . And this was part of the dynamic of intercountry adoption in Guatemala, which future blog posts on this topic will address.

Aboriginal legislation in Australia heavily criticized by Amnesty International

A story on today’s National Times, a well-regarded Australian newspaper, highlights Amnesty International’s criticism of legislation relating to the intervention in Australia’s Northern Territory (discussed in a previous posting in this blog). A wider campaign by the same organization accuses the legislation of being discriminatory and, most importantly, paternalistic, in the sense that it has not met requirements of Free, Prior and Informed Consent (the object of much debate in this blog), and that it simply assumes the government knows what’s best for aboriginal peoples. A current campaign by Amnesty International is trying to put pressure on the Australian Senate not to approve the legislation, which has already cleared the House of Representatives.

Written by Lucas Lixinski

New York catwalk: walking in the caves of Australia?

Fashion, fashion, fashion...who doesn’t like a pretty piece of garment? I do, I do – guilty on all accounts.

Left: guilty hands?!

One of the things that fascinate me the most is to see people wearing traditional cloth – I think that I mentioned that in one of my posts when referring to graduation day and seen my students’ parents wearing traditional cloth (what a proud moment). Now, the matter here today is when some of these traditional garments and arts become fashion, will I wear it? To be honest I do not know, will I be disrespectful? oi! I do not like that idea, but as said before, I am a fashionable person and I cannot say that I will not be tempted.

Anyways all of these thoughts came due to the news that in the recent New York Fashion Week two young designers (behind the label Rodarte) showed in their garments Australian Aboriginal art. They claimed that they have never been to Australia but have been inspired by books and other resources. They indeed do not denied where their inspiration came from assuring that the patterns referenced aboriginal art and that the hand prints were inspired by ancient cave paintings.

From pretty designs to theft
Megan Davis, the academic who heads up the UNSW Indigenous Law Centre and a member of the United Nations Permanent Forum on Indigenous Issues, noted that “the prints were an insensitive theft of her Australian Aboriginal culture.” She continues “It is completely insensitive to Aboriginal art and spirituality and land and how they are inextricably linked”. She did not stop here, mentioning that she “found the designs offensive”. In this regards she mentioned that there is the need to bear in mind that these people usually live in poverty and the “thought of seeing women walking around in this particular ready-to-wear collection sickens me. Because it is my culture and it is where I come from”.

From theft to License agreements
Rodarte responded to this enquiry by saying the following:

“We deeply respect and admire the work of other artists. Through the appropriate channels, we licensed the Aboriginal artwork that influenced prints in our collection. As a result, the artists will share in proceeds of the pieces inspired by their work.”

The source of the news indicated that they check with the Aboriginal Artists' Agency which represents Papunya Tula Artists in this matter, and the information was confirmed – Rodarte do have a licence.

This news today was shared by Robyn Ayres, Executive Director @ Arts Law Centre of Australia. She mentioned “Arts Law’s Artist in the Black service is proposing to develop some template documents for ethical collaborations between designers and Indigenous artists whereby guidance is provided in relation to protocols and best practice in this area.” I truly believe that this is an excellent idea and hopefully we will hear more about this in the near future.

My final thought: Will I wear it? I think that I will be killing two birds with one stone: being in fashion and knowing that some of the money will go to the aboriginal. Will I have the money to buy it? well, that is another story.

Indigenous Consultation in Australia’s Northern Territory: White Paternalism or Extraordinary Measures Required by Extraordinary Times?

A piece in today’s Sydney Morning Herald calls attention to the aftermath of the intervention in Australia’s Northern Territory a few years ago (2007-2008), where welfare payments to indigenous peoples were made conditional upon school enrolment, and strong measures were adopted to try to curb alcoholism and child sexual abuse. More about the background of this intervention can be found on Wikipedia, but, among many measures, the A$ 587 million package included restrictions on pornography access in public computers, restrictions on the sale of alcohol, and, importantly, the removal of consideration of customary law in sentencing practices. When first approved, the plan drew a lot of criticism, but also a lot of support; in fact, enough support to let it go through.

As the intervention officially lapsed in 2008, the Australian federal government has been discussing means to ensure the continuity of the measures put in place (or at least part of them), in the form of what has been referred to as the “Stronger Futures legislation”. To that effect, it undertook consultations with Aboriginal communities across the Northern Territory. But, it seems from the SMH story cited above, the consultation process was problematic, and did not actually engage with Aboriginal communities. The piece, which draws on a 144-page report criticizing the consultation process, insists that in many instances the consultation process felt more like a “controlled chat run by departmental officers” than an open forum where Aboriginal people could express their viewpoints, and have them heard.

Importantly, the UN Declaration on the Rights of Indigenous Peoples is an important part of the legal basis for this articulated critique of consultation processes and free, prior and informed consent. The fact that Australia withdrew its initial opposition to the UNDRIP, it seems, does not mean it is ready to abide by its every mandate. But, as long as there is some room for debate, there is hope.

Written by Lucas Lixinski.

On tokenism and white people writing about indigenous peoples

Two weeks ago, the Australian Parliament held an event to show its official institutional support for the recognition of Aboriginal and Torres Strait Islander Peoples in the Constitution. A link to a short video of the event is here, and contains brief glimpses of indigenous individuals speaking about their hopes and aspirations for the recognition process. Is this tokenism? Well, to a certain extent, it is. Most of the people that appear on this video are both indigenous and part of a “white-person-relatable” middle class. Which begs the question: why should their views matter, if they are to a certain extent assimilated (and, therefore, no longer “truly” indigenous)?

For one, there is no such thing as “truly” indigenous. Just like there is no such thing as “authentic” culture or cultural heritage. To think of indigeneity, or culture more broadly, in terms of authenticity implies a degree of essentialization that, to be quite honest, is counterproductive at its best, and plain evil at its worst. Allow me to explain that a bit further: by allowing people to be divided along lines of “authentic” and “non-authentic”, one necessarily creates the other, thereby playing into the hands of the racist policies one should be countering. Identity is not, by any standard, a watertight category, it is fluid, constantly evolving, multi-faceted. The fact that, back in the 1980s, Sandra Lovelace, and indigenous woman from Canada, got married to a white man, meant she lost her indigeneity, for legal purposes. Is that the way things should go? The UN Human Rights Committee said “no” back then, and it is surprising that things have not changed that much in the past 30 years, despite that forceful statement about identity not depending on one single factor, and one facet of identity not meaning the exclusion of others. But I digress.

Back to tokenism in the Australian process, the second reason why those peoples’ opinions should matter is precisely because, as Aboriginal peoples who got, for one reason or another, to be part of both worlds (the Aboriginal and the settler society), they are in a better place to mediate tensions, to understand both languages, to be themselves the catalysts for this important change. Without their presence, the whole process might be jeopardized simply by the inability to find a common language, or by finding a shadow of a common language that is plain condescending and paternalistic (reminiscent of early indigenous recognition processes in many Latin American constitutions).

So, these participants in the process are at least every bit as important as the “real” Aboriginals and Torres Strait Islanders, if not more so. This in turn relates to one of Sarah’s recent posts, about her place as a white person writing about indigenous issues. While I am in the same position (a non-indigenous person wildly interested in indigenous issues), and I am very careful not to essentialize, not to be paternalistic, and not to assume that I can any way fully comprehend the depth of the indigenous experience (just as I don’t think indigenous individuals can fully grasp the non-indigenous experience), I think my attempts at it are valid, precisely because of this “bridge” capacity of my interventions (however modest). Plus, it is by trying to step into one’s shoes that we develop empathy, something that is clearly in short supply in so many areas of human activity.

Written by Lucas Lixinski.

Four Years after the Australian Apology: The Value of Words?

In 2008, an historic apology (here) was issued by then Australian Prime Minister Kevin Rudd to the Aboriginal Peoples of Australia.

The Australian newspaper article notes an event that was held to commemorate the four year anniversary of the apology. But as reflected in that article, “sorry” is a place to start—it is a beginning point, not a resolution.

The current Prime Minister of Australia, Julia Gillard will provide an update on the progress made since the apology next week, according to this article in the Sydney Morning Herald.

The apology addressed particularly the events of the forced separation of children from their families, something that has happened in recent history, not in the distant past, as noted in the apology:

“But let us remember the fact that the forced removal of Aboriginal children was happening as late as the early 1970s. The 1970s is not exactly a point in remote antiquity. There are still serving members of this parliament who were first elected to this place in the early 1970s. It is well within the adult memory span of many of us. The uncomfortable truth for us all is that the parliaments of the nation, individually and collectively, enacted statutes and delegated authority under those statutes that made the forced removal of children on racial grounds fully lawful.”

Today, this kind of forced removal is prohibited by Article 7(2) of the UN Declaration on the Rights of Indigenous Peoples. What seems unthinkable today was seen as good government policy only a generation or so ago.

The Australian government was not alone in its pursuit of policies of forced assimilation and forced removal of indigenous children in the belief that this was in the best interest for the children. The United States government also pursued this prior to the passage of the Indian Child Welfare Act in 1978. ( See prior posts on the subject of the Indian Child Welfare Act here and here) And controversy rages in parts of the United States over whether the Indian Child Welfare Act is being adhered to, following a report by NPR.

All of which raises the question—what are the values of words? What is the value of an apology? What is the value of the words of laws on books if not accessible or implemented and enforced? Words alone do not begin to address the situations to which they are directed. Action is required to make them meaningful. Australia, which originally opposed the approval of the UN Declaration on the Rights of Indigenous Peoples has reversed that stance. But what will be more meaningful is to heae the report of the Australian Prime Minister, and to hear what progress has been made four years after the Australian apology.

The Aboriginal Embassy, Protests, Rights and the Constitutional Referendum

Sarah’s post about the protests in Australia around Australia Day – a day which several Aboriginal leaders refer to as “Invasion Day” – brings forth the issue of the relationship between indigenous peoples and settler societies. If, on the one hand, countries like New Zealand, Canada and the US have treaties whereby the indigenous peoples “ceded” their lands (the validity of that consent is the subject of much controversy), most countries in Latin America and Australia (as well as, to the best of my knowledge, Scandinavian countries) do not have such formal arrangements, and have attempted to establish their rapport with indigenous peoples in a more organic way as of late. Sure, followed by centuries of invasion, decimation and oppression, but now seemingly willing to genuinely achieve positive balance in indigenous peoples – settler societies relations in a non-assimilationist fashion.

But not all is this clear-cut, of course. Perhaps because Australia is the one English-speaking country where there are no Treaties, Aboriginal peoples have – and rightly so, I believe – chosen to treat the settler society as a guest in their country, or to see themselves as not Australians (to the extent “Australians” are the descendants of European colonizers). Hence the embassy, which has been around for 40 years. But a lot of this might change, should the referendum to amend the Constitution pass. Sure, Tony Abbott’s – the opposition leader in Australia – remarks were unfortunate, to say the very least, but there might be something to them. If the Australian Constitution aptly recognizes Aboriginal and Torres Strait Islander peoples, then what role is there for an embassy, at least bearing the name of “Embassy”? Of course, the Aboriginal cause will not have achieved every single one of its goals with the mere passage of a constitutional amendment, but the core objective of its cause will need to be fundamentally reshaped, and it might be time to start considering that, while at the same time keeping putting on pressure for referendum.

Patrick Dodson’s (one of the members of the Expert Panel that produced the report released last week) op-ed piece published today (here) is a reminder of what is really at stake, and how one should not be detracted by the single violent incident of an otherwise remarkably peaceful and lasting protest – the Aboriginal Embassy.

Written by Lucas Lixinski

The Corroboree for Sovereignty, the Treaty of Waitangi and Unresolved Questions in International Law

There has been a great deal in the news about Australia Day—26 January—and the protests by the Aboriginal Peoples. In the swirl of these events, other long-standing protests have been overlooked. These other groups of protestors raise claims about sovereignty, the need for treaties, and for re-examining the relationship between the Aboriginals and the government. It is true as well that there is a proposed change to the Australian Constitution, which has been discussed in the blog post by Lucas, but it does not address the deep-seated and persistent issues that are raised by these other protests.

This article here from the Canberra Times notes two other protests, the Corroboree for Sovereignty and a 40 year long tent embassy:

“The three-day Corroboree for Sovereignty, which will run until tomorrow, is being timed to coincide with the 40th anniversary of the Aboriginal tent embassy's establishment in Canberra.”

More information on the Tent Embassy and the Corroboree for Sovereignty can be found at this link. One of the issues put forward is the demand for a treaty between the Australian government and the Aboriginal Peoples. Australia stands in contrast to its near-ish neighbour, New Zealand, in respect of how the relationship between the indigenous peoples and European colonisers was shaped. Australia saw the development of the doctrine of terra nullius, translating literally to “empty land.” In other words, the land was treated as if no one was there—at least no one that the colonisers wanted to or felt obliged to acknowledge. New Zealand, on the other hand, has the Treaty of Waitangi (here is a link to information on the treaty) that governs the relationships between the indigenous peoples of New Zealand and the government. The Treaty is recognised and in effect today. In 1975, an Act was passed that established the Waitangi Tribunal ( link to legislation here).

As explained on the Tribunal’s website, http://www.waitangi-tribunal.govt.nz/, “The Tribunal is a permanent commission of inquiry charged with making recommendations on claims brought by Maori relating to acts or omissions of the Crown that breach the promises made in the Treaty of Waitangi.” In respect of claims made to the Tribunal, it “ has to decide whether, on the balance of probabilities, that claim is well founded. Where the Tribunal finds that such is the case, it may recommend to the Crown means by which the Crown can compensate the claimants, remove the prejudice, or prevent similar prejudice happening to others in the future.”

This is an important mechanism for the recognition and enforcement of Treaty rights—something that is unique in the landscape of treaty rights, sovereignty claims and relationships between indigenous peoples and governments. The UN Declaration on the Rights of Indigenous Peoples provides for the recognition of treaties in Article 37,

“Article 37
1. 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.
2. Nothing in this Declaration may be interpreted as diminishing
or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements.”

But the article and the Declaration are silent on how and where these treaties are to be enforced. Are these a matter of international or domestic jurisdiction? And where are indigenous peoples to go with claims of sovereignty—such as those raised by the Corroboree for Sovereignty—and demands for treaties where none currently exist? If the state is unwilling or its responses deemed inadequate, are there grounds for some sort of international claim? And if so, on what basis and where? These and many other questions rise to the fore when considering the claims of the Corroboree for Sovereignty, and the contrasts with treaty arrangements in New Zealand. Whilst many gains have been made in international law for the recognition of the rights of indigenous peoples, many other questions remain unresolved and unanswered.

Written by Sarah Sargent.

Australia: Improving Aboriginal School Attendance

Northern Territories: The town of Gunbalanya has schools trialling a new system of school terms to help improve their students’ attendance rates. The reality of Aboriginal Student attendance sees barely over 50 percent of Aboriginal Students attend schools over the last two years.

Traditionally attendance is high at the start and end of the school year. This is due to the heavy rainfall which prevents students travelling. The low attendance rates coincide with the dry season during which the students are undertaking cultural activities and meeting families and elders. The government is taking this into consideration and has decided to trial starting school three weeks earlier in the Aboriginal Community of Arnhem Land. The students will instead receive holiday during the dry season when they can use the time to attend the cultural events.

The move by the government is to be welcomed. By providing a school year which is sensitive to the deep seated cultural traditions of the Aboriginal Students this will help improve the possibility of greater attendance rates. Whilst simply changing the school year alone is not enough to help improve achievement rates, it is one of a number of steps which should be welcomed and embraced as an improvement to the serious situation of failing academic achievement by a large number of Aboriginal students. Spectators can only be hopeful that this trial improves attendance from the pitifully poor rate and helps to improve prospects for the Community and next generation of Arnhem’s young people.

Source ABC.

Written by James Roffee

News on the Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples in Australia

Yesterday, January 20 [yes! it was yesterday in Australia], the Expert Panel appointed to investigate the possibility of a constitutional amendment to the Australian Constitution Act published its report (available here). In it, the Expert Panel, composed of constitutional and international lawyers, aboriginal leaders, members of Parliament and Australian human rights authorities, recommend changes to the Constitution in order to exclude (or at least modify) the powers of the federation to legislate on race matters, and a formal recognition of the role of Aboriginal and Torres Strait Islander peoples in the making of the Australian nation. The panel drew on a wide range of experiences in comparative and international law to back up its proposals.

In an opinion piece published in a prominent Australian newspaper earlier this week, George Williams, a leading constitutional law scholar in Australia, said that “[t] he starting point for political parties is that the constitution should respect the place of indigenous people in society. It should recognise their long occupation of this continent and their continuing relationship with traditional lands and waters”, and expressed hopes that a referendum would actually be won on this matter (Australia has a bleak record of successful attempts at constitutional amendments).[Read the full piece here].

We should keep our eyes open as to what happens in Australia, a country that has only reluctantly accepted the UN Declaration on the Rights of Indigenous Peoples, and that has struggled to offer recognition and protection to its indigenous populations.

Written by Lucas Lixinski.

Sacred Spaces: Litigation and Access to Justice

The Wetlands in Lawrence, Kansas, USA are not the only indigenous sacred spaces subject to litigation. In Australia, there is on-going litigation to prevent mining which is said to put many sacred sites at risk.

The article Aboriginal Group Challenges Mining Project published here contains comments from Professor Jon Altman who points out the disparity in power and resources that indigenous peoples face when it comes to litigation with large corporate interests.

This points out a very real dilemma for indigenous peoples. Access to courts can be expensive, and as the Wetlands litigation points out might conceivably go on for years. It is well and good to have laws on the books—even the “soft law” of the United Nations Declaration on the Rights of Indigenous Peoples. But those laws—as discussed in my earlier posts about the Indian Child Welfare Act-- are rendered meaningless in reality where there is no implementation or compliance with them, or when the protections that they offer are difficult to reach. But the concerns about indigenous rights is more than a point about barriers to reaching the laws or faulty implementation of laws on the books. As a report from Amnesty International (at this link) points out “Indigenous human rights defenders who speak out face intimidation and violence, often with the collaboration of the state.”

Any discussion or contemplation of indigenous rights and the exercise and access to those rights must keep in mind that the claiming and utilisation of rights is far more than an academic exercise. It is a real problem that confronts people in their every day lives. At times it seems that the academic study of indigenous rights runs the risk of being a “fad”-- the topic de jure with much ivory tower theorising—which will fade when the next major international instrument is passed. Any discussion of indigenous rights must keep in mind that there is a very human element to the discussion and that should not be forgotten.

There are many studies done that focus on the practical and real problems indigenous peoples face in accessing and exercising rights. Rachel Sieder and Maria Teresa Sierra have a paper on “Indigenous Women’s Access to Justice in Latin America”, which can be accessed at this link. The International Labour Organisation has a publication from 2009, “Indigenous and Tribal Peoples’ Rights In Practice”, which focuses on ILO Convention 169, and can be accessed at this link.

Written by Sarah Sargent.

Indigenous identity and settler society: a manipuation somewhere?

Sarah's post in response to Patricia's, about "becoming native", brought to mind the idea of how much indigenousness there is to settler societies in countries such as Australia and Brazil, where the percentage of indigenous peoples, compared to the overall population, is fairly low. I am a Brazilian working in Australia, so I can’t help but try to draw similarities between the two countries, especially as Australia now looks into how to insert language recognizing indigenous peoples into the Australia Constitution. My point being, there is something almost tokenistic to the way indigeneity is addressed in some of these countries. I understand that the rhetoric is mighty important, and that it does help build up to concrete action, but when Australians seem to favor a preamble over a hard provision on the recognition of the contribution of indigenous peoples to Australian society and on safeguards for their culture, it makes me wonder how indigenous identity can be manipulated and appropriated by settler societies to serve certain purposes.

Crossing back to the Americas, take the Organization of American States (OAS) as an example. The OAS has been drafting for many years now its own declaration on the rights of indigenous peoples, and there is a lot of buzz around it, seen as a vast majority of the world’s indigenous peoples live in the Americas. And there is a lot of language in this OAS draft about how the identity of the American people is different from Europeans precisely because of the indigenous influence. So far, so good. Except that it creates the possibility for an appropriation of indigeneity, or, to be more precise, a certain version of indigeneity that conforms to the goal of “safe differentiation from Europeans” that is problematic, in the sense that non-idealized expressions of indigenous identity will not gain as much recognition, for not being seen as “sufficiently indigenous”, or, what is worse, not “authentic”. Am I against a search for authenticity when it comes to culture? To be quite honest, I go back and forth a lot on this one, but, if the criteria for authenticity are to be set a priori by non-indigenous peoples, then I am against a test of authenticity of any sort. Why? Because it creates an expectation that indigenous peoples’ cultures, in order to receive any support from the government for their development, will have to conform to a certain idyllic way of life, which may well coincide with what they wanted all along, but it may also not. Depriving indigenous peoples of the choice to be what they want is what bothers me.
Which is why, while I am all for recognizing the influence indigenous peoples’ influence on settler societies, I am wary of any attempts at determining, from the outside, what this culture is on the whole. So, let us come home and become a little more native, by all means, but let us prevent ourselves from thinking we can actually comprehend a foreign culture in all its richness, texture, nuance and internal contradictions. We should always aspire to knowing it in full, but we should always be aware we’ll never get there.

Written by Lucas Lixinski.