20 August 2008 Peter Seidel Partner, Public Interest Law Arnold Bloch Leibler Lawyers and Advisers

1. CASTAN CENTRE DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLE SYMPOSIUM - APPLICATION OF THE DECLARATION IN AUSTRALIA 20 August 2008 Peter Seidel Partner, Public Interest Law Arnold Bloch Leibler Lawyers and Advisers

2. Summary • Declaration – Background • Domestic Application of the Declaration – General • Domestic Application: Practical Examples • Yorta Yorta peoples • Charter of Human Rights and Responsibilities Act 2006 (Vic) • Declaration, Charter and the Aboriginal Heritage Act 2006 (Vic) • Wadeye HR Complaint • Conclusion

3. Declaration - Background • Declaration adopted by UN GA on 13/9/07 after 20 year negotiations. 143 States in favour; Australia one of only four against. • No new rights in Declaration - long standing human rights. • Australian courts accept doctrine of transformation - international law not part of Australian law unless formally transformed into domestic legislation. • But, note Teoh – legitmate expectation decision maker will take into account Declaration. • A treaty adopted by UN GA but not implemented domestically can create neither rights nor obligations; any breach is non-justiciable. • Even though Australia yet to support Declaration, and Declaration is non-justiciable, it does constitute international law.

4. Declaration – Background (cont.) • Australia can be judged internationally against Declaration’s standards. • Declaration also has domestic resonance: • courts must strain to adopt statutory constructions consistent with international obligations, unless clear words rebut presumption; • Governments accountable if policy or actions are contrary to Declaration; and • Indigenous peoples can use it as political leverage in human rights dialogue (preamble highlights objective - ‘a standard of achievement to be pursued in a spirit of partnership and mutual respect’). • Post-apology in February, Stephen Smith confirmed Commonwealth preparing to support Declaration. Yet to do so. • The following examples drawn from my experience illustrate practical importance of Declaration. • In one instance highlights why Australia’s failure to formally support it, despite fact it already applies, may already be causing real confusion on the ground.

5. Domestic Application: Practical Examples – Yorta Yorta peoples Yorta Yorta peoples and the Declaration Yorta Yorta High Court decision and the Declaration • According to the High Court: • claimants must demonstrate traditional law and customs of ancestors in 1788 and substantial uninterruption, ever since. • court found it was open to Olney J to find Yorta Yorta native title had been washed away by “tide of history” in 1881, by privileging historical written record over oral testimony. • The practical consequences for Yorta Yorta of being denied native title rights are substantial - removal from National Native Title Register means no NTA protective mechanisms.

6. Domestic Application: Practical Examples - Yorta Yorta peoples (cont.) • Yorta Yorta decision inconsistent with Declaration, including following rights and requirements: • the right to strengthen social and cultural institutions (Article 5); • State required to redress for actions that deprive Indigenous peoples of integrity as distinct peoples and/or of dispossessing of lands (Article 8.2(a) and (b)); • right to revitalise cultural traditions (Article 11.1); • States to redress for cultural, intellectual, religious and spiritual property taken without f, p and ic (Article 11.2); • right to revitalise oral traditions (Article 13); • right to participate in relevant decision making (Article 18); • right to strengthen spiritual relationships with lands (Article 25); • right to territories and resources traditionally owned (Article 26.1); and • right to redress for lands confiscated without f, p and i c, as lands or money (Article 28).

7. Domestic Application: Practical Examples - Yorta Yorta peoples (cont.) Beyond Yorta Yorta – native title proof requirements and the Declaration • The “Yorta Yorta standard of proof” now taken on universal understanding and application in native title litigation and mediations - “frozen in time approach”. But this is at odds with Declaration, amongst other international human rights instruments. • If these had been properly taken into account in (e.g. Article 27 ICCPR and Articles 2 and 5 of the CERD), settled law of Australia would be significantly different.

8. Domestic Application: Practical Examples - Yorta Yorta peoples (cont.) • Settled law of Australia ought require courts to analyse content of Indigenous peoples’ native title in accord with Declaration: • primarily by reference to how group defines its culture, through oral testimony; and • secondarily by reference to written external historical evidence critically constructed. • Wherever there exists alternative interpretations of NTA (e.g. section 223(1)), Australian courts obliged to maximise recognition and protection of native title consistent with Declaration. • High Court (or Commonwealth through legislation) must settle principles that address unique evidenciary issues involved, including acknowledging fact claims are based on orally transmitted traditions, and avoiding receipt of “historical snapshot of adventitious context … ” (Black CJ), incapable of cross-examination.

9. Domestic Application: Practical Examples - Yorta Yorta peoples (cont.) Yorta Yorta political struggle and the Declaration • Since 2002, Yorta Yorta tried to engage politically with NSW and Victoria. • Limited success in Victoria with Yorta Yorta Cooperative Management Agreement (YYCMA). All efforts in NSW have failed. • Declaration gives new impetus. • Yorta Yorta long aspired to take title to crown land country, under handback/leaseback/jointly managed national park. Victoria and NSW have moral obligation to accede to this, in accord with Declaration.

10. Domestic Application: Practical Examples - Yorta Yorta peoples (cont.) • Immediate context in which this must be played out, now, based on Article 28 (rights to redress – restitution or compensation by return of lands). • VEAC’s River Red Gum Forests Investigation commenced April 2005. Under the ToR the purposes of the investigation were to: • Identify and evaluate the extent, condition, values, management, resources and uses of riverine red gum forests …; and • Make recommendations relating to [its] conservation ... • Investigation includes public land from Lake Hume to the South Australian border and includes the Avoca, Loddon, Campaspe, Goulburn, King, Ovens and Kiewa Rivers. • VEAC’s Final Report released on 25 July 2008.

11. Domestic Application: Practical Examples - Yorta Yorta peoples (cont.) • By ToR VEAC directed to consider: “obligations resulting from International … arrangements, as they relate to the investigation.” • Another was YYCMA. • On 10 June 2004 the Yorta Yorta Nation Aboriginal Corporation (YYNAC) and Victoria entered YYCMA - cooperative management. Does not deal with underlying tenure. • In VEAC’s final report, new Barmah National Park recommended to be co-managed through BoM with majority Yorta Yorta. But co-management already exists - YYCMA.

12. Domestic Application: Practical Examples - Yorta Yorta peoples (cont.) • In recommending co-management no explanation why joint management not preferred over country already co-managed. • Bearing in mind ToR, VEAC compelled by Declaration, including Articles 11.2 (redress with respect to cultural property), 26.1 (right to lands traditionally owned) and 28 (redress and compensation, including return of lands) to make underlying tenure recommendations. • Hand back/leaseback arrangement, with management that accommodates Yorta Yorta perspectives, including traditional ecological knowledge, much more in accord with Declaration. • Australia’s failure to formally support Declaration contributed to VEAC’s confusion to accommodate Declaration?

13. Domestic Application: Practical Examples - Yorta Yorta peoples (cont.) • On 7/8/08 Victoria announced new community engagement panel to work through VEAC’s recommendations. Panel to report back in 4 months. Panel to consist of Deputy Chair of Goulburn-Murray Water, a timber industry expert, a dryland farmer and a former regional Upper House MP.  • A panel to report on the work of a committee - more things change, more things stay the same! • If Victoria was focused on Declaration it would have immediately resolved to implement VEAC, as it committed to during 2006 election (“..[to] create new Red Gum National and Forest Parks if recommended by VEAC’’ Page 9, ALP Policy for 2006 Election).

14. Domestic Application: Practical Examples - Yorta Yorta peoples (cont.) • And, it would immediately institute systems to accommodate Yorta Yorta f, p and i c - national park; handback; leaseback - in accord with Articles 11.2, 26.1 and 28. • Establishment of new committee delays inevitable. Article 19 (States to consent and cooperate in good faith with Indigenous peoples to obtain f, p and i c before adopting legislative/administrative measures) means traditional owners must be engaged with now.

15. Domestic Application: Practical Examples – Human Rights Charter Act Declaration and Victorian Charter of Human Rights and Responsibilities Act • Victorian Charter of Human Rights and Responsibilities Act (Human Rights Charter Act) aims to improve work of government by, for e.g., compelling decision-makers to act compatibly with human rights. • Sub-section 32(1) - “[s]o far as is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.” • Sub-section 32(2) - “international law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right…[t]o…be considered when interpreting a statutory provision”.

16. Domestic Application: Practical Examples – Human Rights Charter Act • Act explicitly refers to Aboriginal culture in preamble (human rights have special importance for Aboriginal people of Victoria) and by emphasizing Aboriginal people hold distinct cultural rights. • But Human Rights Charter Act does not extend as far as, for e.g., Article 3 (right to self-determination/effective political participation) and Article 25 (right to strengthen spiritual relationships with traditional lands). • So, section 32 sets up inconsistency - beyond it other Victorian statutes are to be read in accordance with the Declaration, but the Act falls short of articulating Declaration. • Act to be reviewed within next 3 years. Declaration should be used as benchmark to ensure rights in Declaration are accommodated in Human Rights CharterAct.

17. Domestic Application: Practical Examples – Human Rights Charter Act • In meantime, Indigenous Victorians can leverage off section 32 to ensure Declaration is honoured. • E.g. Aboriginal Heritage Act 2006 (Vic) (AHA). • AHA now be read in the context of Declaration, as well as international judgements. • Amongst others, inter-American Court of Human Rights construed many conventional human rights to have Indigenous perspective in Indigenous rights cases (e.g. Yakye Axa – inadequate procedure for land claims is a breach of the fair hearing human right). • But note, so “far as is possible to do so consistently with [its] purpose” AHA to be interpreted in a way compatible with Declaration.

18. Domestic Application: Practical Examples – Human Rights Charter Act • AHA’s purpose to “provide for the protection of Aboriginal Cultural Heritage in Victoria” (section 1 AHA); • Objectives (section 3) of AHA include to “accord appropriate status to Aboriginal people with traditional or familial links … in protecting that heritage”. • But one main principle is to ensure only some (not all) Aboriginal cultural heritage (skeletal remains; “secret or sacred Aboriginal objects”) owned by “Aboriginal people with traditional or familial links to the area” (section 12).

19. Domestic Application: Practical Examples – Human Rights Charter Act • Compare Declaration: • Article 11.1 (“right to maintain and protect manifestations of … cultures, such as … sites, artefacts, designs …”); • Article 12.1 (“right to … have access in privacy to religious and cultural sites; right to the use and control of their ceremonial objects …”); and • Article 12.2 (“States shall seek to enable access and/or repatriation of ceremonial objects and human remains …”).

20. Domestic Application: Practical Examples – Human Rights Charter Act • AHA falls short of Declaration (particularly Articles 11 to 13 - cultural/spiritual identity), including: • AHA empowers Victorian Aboriginal Heritage Council to make significant decisions that are unique province of traditional owners; • by definition of registered Aboriginal parties, non-traditional Indigenous interests are empowered without obtaining traditional owners’ f, p and i c; • AHA allows for more than one Aboriginal group to be involved in cultural heritage decision making for an area; • no entitlement for registered Aboriginal parties to maintain a particular activity should not proceed if significant Aboriginal cultural heritage will be destroyed; • VCAT can re-hear and determine cultural heritage assessments - arbiter on Indigenous cultural heritage perspectives. • Aboriginal heritage inspectors appointed to VPS; under previous regime inspectors answerable to traditional owners.

21. Domestic Application: Practical Examples – Human Rights Charter Act • Minister given power to amend or revoke interim or ongoing protection declaration on own initiative, without f, p and i c of traditional owners; • contrary to previous Act, offence of harming Aboriginal cultural heritage includes mental element (person must do the harm “knowingly or recklessly”). Prosecution significantly more difficult. • Defences also expanded. • Declaration relevant in AHA related court proceedings: • Courts required under Human Rights Charter Act to interpret AHA consistently with Declaration; and • by Human Rights CharterAct, Supreme Court has power to declare AHA cannot be interpreted consistently with Declaration. • In addition to courts, Indigenous groups may leverage off Declaration in negotiations with State to practically improve on aspects of AHA inconsistent with Declaration.

22. Domestic Application: Practical Examples – Wadeye HR Complaint Declaration in context of Wadeye complaint • Prior to 1979, Former Mission Schools (like OLSH Wadeye) were directly funded by the Cth. From 1 July 1979 by agreement NT accepted responsibility. • Cth then provided education funding to NT for Former Mission Schools and NT administered funding on a different basis to all other independent schools in NT. • Cth and NT engaged in direct discrimination – section 9(1) of Racial Discrimination Act (Cth) (RDA) because of 1979 “race based” agreement. • From 1 July 2007, Cth has regularised Cth to NT education funding arrangements (now independent, Catholic school).

23. Domestic Application: Practical Examples – Wadeye HR Complaint • Since 1979, and continuing, NT secured education funding from Cth for OLSH on enrolment basis but provides funding to OLSH on “persistent” attendance basis. • NT audits “attendance” 8 times a year, first at week 4 when numbers have dropped off. • At commencement of each of the 2005-7 school years, in excess of 600 students enrolled at OLSH, but there were not enough: • desks, pens, books or lockers for all children; • amenities such as a library and toilets. • In 2008 things are starting to change (secondary school now operating), but regressive NT formula remains.

24. Domestic Application: Practical Examples – Wadeye HR Complaint • Community contends NT engaged in indirect discrimination (section 9(1A) RDA) by imposing apparently neutral condition of requiring student attendance at OLSH for prescribed period prior to allocating funding received from Cth. • This condition has greater negative impact on OLSH than with Catholic and independent schools in NT. • HREOC complaint (RDA and Disability Discrimination Act (DDA)) regarding the substantial under-funding of and underspending on education and disability services in Wadeye. • HREOC mediation set to commence shortly. • Declaration can be used to illuminate RDA and DDA of relevance to racial and disability discrimination complaints.

25. Domestic Application: Practical Examples – Wadeye HR Complaint • Section 9 of RDA illuminated by: • Article 2 (Indigenous peoples have right to be free from discrimination). Principle is clear - Indigenous peoples are not to be discriminated against. • Article 14.2(right to all levels and forms of education of State without discrimination and State to take effective measures for Indigenous peoples access to an education in own culture and language). • Also, section 9 of RDA and section 5 of the DDA (discrimination if person with disability treated less favourably than person without) can be read in context of Article 21 (right, without discrimination in education; and States to take effective special measures to improve economic/social conditions, with focus on rights of children and persons with disabilities).

26. Domestic Application: Practical Examples – Wadeye HR Complaint • Further, section 5 of DDA illuminated by Article 22 (particular attention paid to rights and special needs of elders, women, youth and persons with disabilities in implementation of Declaration). • And so, in the context of RDA and DDA complaints before Federal Court, given a choice, courts must strain to adopt interpretation of relevant statute consistent with non-discrimination as espoused in Declaration. • Arguably then, by Declaration relatively easier for complainants to substantiate discrimination complaints.

27. Conclusion • Declaration contains human rights standards, by which Australian law and Australian Government policy and decisions can presently be judicially considered. • As well, Declaration can be used by Indigenous peoples and their supporters as political leverage, aimed at outcomes achieved “in a spirit of partnership and mutual respect”. • Examples given to illustrate potential breadth of relevance of Declaration, to encourage its application “on the ground”, where real work of protecting rights of Indigenous peoples is done.