Davis, Megan --- "Adding a new dimension: Native title and the UN Declaration on the Rights of Indigenous Peoples" [2009] ALRCRefJl 5; (2009) 93 Australian Law Reform Commission Reform Journal 17

---

Adding a new dimension: Native title and the UN Declaration on the Rights of Indigenous Peoples

By Megan Davis*

The United Nations Declaration on the Rights of Indigenous Peoples (the Declaration) was passed by the General Assembly on 13 September 2007. The Declaration constitutes a non-binding and aspirational Declaration of the General Assembly.¹

The adoption of the Declaration was a triumph for Indigenous peoples after persevering for more than 20 years to secure an international instrument aimed at recognising the distinct cultural rights of Indigenous peoples and providing redress for the injustice of the dispossession of Indigenous lands. It was also a triumph for the United Nations (UN), which had made the adoption of such a Declaration the major objective of the UN’s International Decade of the World’s Indigenous Peoples (1995–2004).²

The Declaration has extensive provisions relating to the recognition and protection of Indigenous lands. In fact, the land, territories and resources provisions were the most controversial articles in the text of the Declaration. Controversy over Indigenous rights to land prolonged the Geneva Working Group that elaborated on the Declaration. Yet now that the Declaration is an international instrument, the land rights provisions should have an influence on future developments in native title law and policy. Despite its non-binding status, the Declaration represents an important framework from which the Australian state can re-engage Indigenous communities in relation to native title on the basis of internationally recognised and accepted standards pertaining to the rights of Indigenous peoples to land and the recognition of their culture.

Today, many Indigenous peoples are questioning how the Declaration can assist Indigenous peoples in improving the native title system. It may be that the Declaration—which does not create any new rights, but rather recognises rights that already exist in international law—can facilitate a correction of native title law and policy which has proven to be profoundly disappointing for many Aboriginal communities. In particular, disappointments have resulted from the limiting way that the courts have interpreted s 223 of the Native Title Act 1993 (Cth) (NTA).

The land rights provisions of the Declaration

Articles 24–30 of the Declaration relate to land and resources, and reflect the importance of land and the environment to Indigenous peoples and the survival of their culture. The importance of Indigenous peoples’ relationship to land is reflected in the Preamble:

Concerned that Indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests,
Recognizing the urgent need to respect and promote the inherent rights of Indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources.

As with many of the clusters in the Declaration, this section contains rights that are already recognised in other international instruments. In particular the land and resources section draws heavily from International Labour Organization, Indigenous and Tribal Peoples Convention, No 169.

Two of the Declaration’s most controversial articles on land and resources are contained in art(s) 25 and 26:

[25] 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.
[26] 1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the Indigenous peoples concerned.

Perhaps the single most controversial proposal by the Working Group, however, was draft art 27, which would have recognised the right to restitution of the lands, territories and resources which Indigenous peoples have traditionally owned or otherwise occupied or used, and which have been confiscated, occupied, used or damaged without their free and fair compensation. One legal commentary provided to the UN suggested that this means that:

Substantively, the principle of free, prior and informed consent recognizes Indigenous peoples’ inherent and prior rights to their lands and resources and respects their legitimate authority to require that third parties enter into an equal and respectful relationship with them based on the principle of informed consent. Procedurally, free, prior and informed consent requires processes that allow and support meaningful choices by Indigenous peoples about their development path.³

However, the final version, which appears as art 28 of the Declaration, provides for a right to redress ‘by means that can include restitution’ (emphasis supplied) or other forms of just compensation:

1. 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.
2. 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.

What relevance is the Declaration?

The Declaration is non-binding and this means even if the Australian Government endorses it, it has no legal effect. Having said that, some international lawyers are now arguing that some of the land articles in the Declaration already constitute emerging customary international law with respect to the rights of Indigenous peoples.

In fact, James Anaya and Siegfried Wiessner argue that there is already a distinct body of customary law that accords with the Indigenous right to:

demarcation, ownership, development, control and use of the lands they have traditionally owned or otherwise occupied and used.⁴

Their study involved a global survey of state practice relating to Indigenous land recognition. Their argument is that the Canadian, Australian, New Zealand and United States (CANZUS) objections to the Declaration do not diminish the contribution those states have already made to global state practice when it comes to recognition of Indigenous land.

This customary norm of state practice was referred to by the Inter-American Court of Human Rights in the Mayagna (Sumo) Awas Tingni Community v Nicaragua decision.⁵

Consequently, while it is true that the Declaration is non-binding in and of itself, state practice clearly demonstrates that aspects of its operative provisions relating to land may already amount to state practice—and this is a result of Indigenous land laws already recognised by member states, including the four states that objected to the Declaration in the General Assembly.⁶ This state practice developed over a long time and independently of the Declaration. For example, in Australia, the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), the High Court’s decision in Mabo v Queensland (No 2) and the NTA are all examples of state practice that have contributed to this developing customary norm, independent of the Declaration.⁷

Already one jurisdiction has applied the principles within the Declaration as a framework for determining land rights. One month after its adoption, the Supreme Court of Belize applied the Declaration in handing down a decision relating to Mayan rights to lands and resources. Chief Justice Conteh found that Belize was obligated by international law to recognise, respect and protect Mayan customary land rights. In finding that there was overwhelming evidence of Mayan customary land tenure, Belize should be:

unwilling, or even loath to take any action that would detract from the provisions of the Declaration importing as it does, in my view, significant obligations for the State of Belize in so far as the Indigenous Mayan rights to their lands and resources are concerned.⁸

Conclusion

In Australia, international law may be used by the courts when attempting to construe the meaning of a statute. It is a general rule of statutory construction that, in the event of ambiguity, interpretation should be consistent with international law, including customary international law.⁹

The Declaration will add a new and important dimension to the native title debate in Australia. The Declaration reveals the contemporary way in which Indigenous peoples’ lives and cultures have developed. It recognises the importance of Indigenous rights to land and situates that right between the state and the Indigenous domain. The Declaration provides an instructive list of standards that increasingly is being practised by member states, courts, United Nations agencies and human rights advocates. For this reason the Declaration will be immensely important for Indigenous strategy in native title, especially through the courts.

* Megan Davis is the Director of the Indigenous Law Centre and Senior Lecturer at the University of New South Wales. She is Aboriginal (Cobble Cobble/Waka Waka) and of South Sea Island heritage.

Endnotes

1 G.A. Res. 61/295, U.N. Doc. A/RES/47/1 (2007).

2 UN General Assembly, International Decade of the World’s Indigenous People, Res. 52/108, 18 February 1998, para 6.

3 United Nations Economic and Social Council, Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Working Group on Indigenous Populations, Preliminary working paper on the principle of free, prior and informed consent of indigenous peoples in relation to development affecting their lands and natural resources that would serve as a framework for the drafting of a legal commentary by the Working Group on this concept, submitted by Antoanella-Iulia Motoc and the Tebtebba Foundation, E/CN.4/Sub.2/AC.4/2004/4, [56].

4 S James Anaya and Robert A Williams, ‘The Protection of Indigenous Peoples Rights over Lands and Natural Resources under the Inter-American Human Rights System (1999) 12 Harvard Human Rights Journal 57; SJ Anaya and Wiessner, ‘The UN Declaration on the Rights of Indigenous Peoples: Towards Re-empowerment’ Jurist (2007) available at <www.law.arizona.edu/news/Press/Anaya100307.pdf> (accessed 16 December 2008).

5 Mayagna (Sumo) Awas Tingni Community v Nicaragua (2001) Inter American Court of Human Rights. A copy of the judgment is reported in ‘The Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua’ (2002) 19 Arizona Journal of International and Comparative Law 415.

6 SJ Anaya and Grossman, ‘The Case of Awas Tingni v Nicaragua: A New Step in the International Law of Indigenous Peoples’ (2002) 19 Arizona Journal of International and Comparative Law 8. The full text of the petition can be found at S James Anaya, ‘The Awas Tingni petition to the Inter-American Commission on Human Rights: Indigenous lands, loggers and government neglect in Nicaragua’ (1996) 9 St Thomas Law Review 157.

7 See Mabo v State of Queensland (No 2) (1992) 175 CLR 1, and the Native Title Act 1993 (Cth).

8 Aurelio Cal, et al v Attorney General of Belize, Supreme Court of Belize (Claim 121/2007) (18 Oct 2007) (Mayan land rights).

9 Polites v Commonwealth [1945] HCA 3; (1945) 70 CLR 60.