Indigenous Self Determination

The concept of self determination has various meanings, interpretations and implications, depending on if its reference pertains to individual or collective circumstance or whether self determination is discussed in context of government policy, agency/institution procedure and implementation, or from a community or individual perspective. This paper attempts to incorporate the view and implications of each, whilst examining the definition of Self determination in accordance with the United Nation’s (UN) human rights framework.

This paper analyses the concept of indigenous peoples’ right to self–determination within the international human rights system and explores viable options for the fulfilment of indigenous self determination through the design, implementation and evaluation of development policies. This paper identifies and explores that there exists a realistic potential for development policies to be a powerful means to facilitate the implementation of indigenous peoples’ right to self deterination within Australia, whilst adhering to the UN human rights framework.

It is argued that development policy plays a crucial role in determining the level of realisation of self determination for indigenous peoples. Development policy can offer an avenue to bypass Australia’s political unwillingness to recognise and promote indigenous peoples’ right to self–determination, by ensuring adequate principles and criteria are inherent the whole policy process. There is promise for development policies to be a powerful means to facilitate the implementation of indigenous peoples’ right to self–determination. The ‘Indigenous Capability Rights System’ will be explored as a potential strategy to ensure indigenous self determination is achieved, enhanced and maintained. It will be demonstrated that the adoption of such a methodological approach to development policy, would enhance the capability for indigenous individuals and communities to enjoy the right to self–determination.

The exclusion of Indigenous Australians from policy decision–making processes has negatively impacted upon the success of governments’ policies and service delivery initiatives. Australia’s governance framework has disempowered Aboriginal and Torres Strait Islander peoples through strong governmental control which has significantly undermined indigenous institutions’ implementation capacity. This paper explores how participation, decision–making capacity, and governance in indigenous communities are key ingredients for a real empowerment of indigenous peoples to fully and responsibly participate in the making of their lives and the betterment of their well–being.




For indigenous peoples, self-determination is essential for the exercise of their spiritual, social, cultural, economic and political rights, as well as their practical survival. Indigenous peoples see themselves as ‘peoples’, with distinct collective rights and distinct historical, political, social, cultural and spiritual identities that unite them. It is through the collective exercise of their right to self-determination that their languages, laws, values, customs, practices, traditions and institutions are revived and maintained. The very identity of indigenous peoples is shaped by the dynamic balance between and linkage of their collective and individual rights. Exercise of their collective rights is not only critical to indigenous spirituality and wellbeing, but also to maintaining the inter-generational nature of all of their social, cultural, economic, and political rights.

Historically, indigenous peoples have tirelessly expressed their demands in terms of self determination. The right of self determination continues to be the most important as well as the most controversial precept within the context of international law and indigenous rights. From an international perspective, the second half of the twentieth–century marks a landmark phase for the advancement of indigenous peoples’ claims within the international legal system. The creation of the United Nations system and the emergence of international human rights law begin a significant era for the status and claims of indigenous peoples within the international system.

Australia was one of the first states to support the unqualified inclusion of the principle of self-determination in the Draft Declaration. In fact, the Australian government was at the forefront of the international community in recognising the right of self-determination of its indigenous population. However, with the election of the Howard Liberal government in 1996, Australia’s position on the right of self-determination at the WGDD changed dramatically. Since the third session of the WGDD in 1997, Australia has been categorically opposed to the inclusion of Article 3, as currently drafted, in the Draft Declaration.

The recognition of the rights of indigenous peoples is part of the unfinished business of decolonisation. For this reason, Australia has a particular responsibility to recognise and protect the rights of its indigenous peoples, including their right of self determination. The persistent refusal of Australia to acknowledge the unqualified right of self-determination for indigenous peoples has enormous negative consequences across a range of areas that directly affect the lives and well-being of indigenous peoples - from control over indigenous land and resources to community involvement in the planning and delivery of health, welfare, and education services.

Indigenous peoples describe self-determination as a way to strengthen the capacity of indigenous peoples to chart their economic, social, cultural and political destinies, to lessen conflict between indigenous peoples and states, to promote peaceful co-existence, and to enable indigenous peoples to bring about sustainable development. Indigenous peoples maintain that by deleting or denying their collective rights in the Draft Declaration has served to severely undermine their most basic rights and status, as well as their integrity as indigenous peoples.

The overlapping nature of the right to self–determination is also stressed by Ted Moses who acknowledges that ‘the very survival of indigenous peoples depends directly on respect for the rights contained in that concept’ (Moses, T. 2000, p 155). Accordingly, self determination is considered a ‘prerequisite’ for the enjoyment of all other human rights and freedoms. This basis of indigenous self determination follows the findings of an important UN study, in which it is stated that ‘human rights and fundamental freedoms can only exist truly and fully when self–determination also exists. Such is the underlying importance of self–determination as a human right and a prerequisite for the enjoyment of all the other rights and freedoms’. (United Nations (2005), The Millennium Development Goals Report )

For most indigenous peoples, self determination is not about separatism, but autonomy or self-government. By exercising the right of self-determination, few, if any, indigenous peoples seek to dismember existing states. Instead, most take a functional approach, expressing a preference for recognition and constitutional reform within states, in order to develop indigenous political institutions and determine their development in accordance with their own values. Accordingly article 45 of the Draft Declaration protects the territorial integrity of the state. It reads:

Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations.

While there is no general agreement on the definition of ‘self-determination’ for indigenous peoples, a useful working definition has been provided by the International Work Group for Indigenous Affairs (IWGIA). According to IWGIA, it means:

The right to control over their institutions, territories, resources, social orders, and cultures without external domination or interference, and their right to establish their relationship with the dominant society and the state on the basis of consent.

The actualisation of self determination however, cannot only be determined through, or implied from, the existence of self governing or autonomous administrative institutions. The spirit of self–determination is achieving indigenous peoples’ real goals, rather than merely creating the appearance of indigenous self government of local administration. It is pointed out that the amount of power and money transferred to indigenous institutions is not a measure of self–determination. In light of her long experience as Chairperson of the WGIP, Daes refers to as the ‘true test of self–determination’ as ‘whether indigenous peoples themselves actually feel that they have choices about their way of life’. Indigenous peoples must feel secure in their right to make choices for themselves – to live well and humanely in their own ways’ (Daes E.A.2000, 69, 76).

Indigenous peoples’ right to self–determination needs to be specifically defined according to indigenous concerns, such as protection of lands, respect of their histories, traditions and worldviews. It is argued that the specifications of indigenous peoples’ self determination requires the inclusion of indigenous identity and must serve as a mechanism to enable indigenous peoples to live their own way. Furthermore, it is recognised that for indigenous peoples, the right to use and benefit from natural resources lies at the core of the overarching right to self determination.

“Self–determination is an aspirational concept which embraces a widening spectrum of political possibilities, from self–management by indigenous peoples of their own affairs to self–government by indigenous peoples of their own communities or lands. Self–determination is a dynamic right under the umbrella of which…peoples will continue to seek increasing autonomy in decision–making.”
L O’ Donoghue, Statement presented at the 1993 session of the Working Group on Indigenous Populations. 


Amartya Sen’s capability approach has been chosen as an example, a framework of thought to explore the interface between indigenous self determination and development policy. The concept of indigenous rights as ‘capabilities to function’ leads to seeing the ‘indigenous capability rights system’ as the overall set of capabilities that indigenous peoples should enjoy in order to be fully self determined agents (Sen, A. K, 1984). It means focusing on the freedoms and real opportunities that indigenous peoples, individually and collectively, should enjoy to lead the kind of life they value and to accomplish what they value. (See appendix .1 which depicts the ‘indigenous capability rights system’ whose core is the integrated process of self–determination).

Indigenous peoples’ quest for self determination though, has clashed with governments’ scepticism, fear and uncertainty to allow indigenous peoples with the right to self determination. It is argued that a deeper mutual understanding of the fears and aspirations of indigenous peoples and governments is required in order to resolve unnecessary conflicts. The realisation of indigenous rights can be made possible only if effective policy measures are put in place to make indigenous peoples, individually or collectively, truly capable of exercising their rights. In this context, the international community, particularly the United Nations system, will undoubtedly play a significant role in facilitating a progressive and forward focused discussion on the development and implementation of indigenous peoples’ right to self determination.

There appears to be an underestimation of the role that institutions play in achieving the real fulfilment of indigenous rights entitlements. Institutions however, maintain a central significance as they play a fundamental role in the enhancement of human capabilities. Individuals live and operate in a world of institutions. Our opportunities and prospects depend crucially on the type of  institutions that exist and how they function. The institutional realm is distinguished by the coexistence of a diverse range of indigenous and non–indigenous institutions, including Australian government and private organisations, and international inter–governmental institutions. Institutions play a crucial role as the instrument by which decision making powers reside, as well as the primary vehicle for development policy initiatives. Accordingly, indigenous peoples’ chance to gain a satisfactory level of self determined outcomes is clearly linked with the structures and processes put in place by a wide range of international, national and community institutions.

The diagram in appendix 2 describes and depicts the process by which the enjoyment of indigenous peoples’ right to self–determination through the lens of the capability framework. Appendix 2 attempts to underline how the effectiveness of institutions in the implementation of indigenous rights is directly linked to the design, implementation and evaluation of adequate policies which must be founded on the principle of self–determination. Accordingly, this paper has argued that development policies towards indigenous peoples may play a key role for the effective realisation of indigenous self determination. For this reason, it is imperative to adopt a methodological approach to policies which facilitates the enhancement of indigenous peoples’ freedoms which underlies the ‘indigenous capability rights system’ and the integrated process of indigenous self–determination.

The lack of indigenous decision–making in policy–design has facilitated the enduring presence of the principle of ‘one–size–fits–all’ within Federal, State and Territories governmental agencies. The disregard of the geographical, economic, and cultural diversity of Indigenous Australia, as well as community priorities and concerns, has further contributed to the failure of governments’ policy to address indigenous issues. As a result, dependency, lack of indigenous participation and inflexibility has been inserted into Australia’s governmental ethos. A ‘top–down’ approach has characterised governments’ policies to indigenous affairs, whereby priorities, needs, resource allocations, and guidelines for expenditure have been decided by the different Commonwealth, State and Territory government agencies. This has consequently resulted in an ‘in–built dependency’ for indigenous communities and organisations which are dependent on annual grant funding arrangements from one or more government departments and agencies which are determined by changing government priorities and budget allocations.

In 2000, the Council of Australian Governments (COAG) endorsed a ‘Reconciliation Framework’ based on a ‘whole–of–government’ approach to indigenous affairs. ‘Coordination’ between government portfolios, ‘partnership’ and ‘shared responsibilities’ with indigenous communities are the fundamental principles guiding the ‘practical reconciliation’ process between Australian governments and Indigenous Australians. Subsequently, eight whole–of–government community trials were established in order to improve coordination among different levels of government, different governmental agencies, and with indigenous communities. The approach proposed under the COAG initiative aims to be flexible in order to respond to the specific needs of local communities and achieve better outcomes. The method operates at two levels: a) governments are required to work together better at all levels and across all departments and agencies; b) governments and indigenous communities are expected to work in partnership and share responsibility for achieving outcomes and building the capacity of people in communities to manage their own affairs (Panzironi F. 2006).

These ‘partnership’, ‘shared responsibility’ and ‘mutual obligations’ agreements are the key principles of the current ‘whole–of–government’ approach to Australia’s indigenous policy. They are the principles which define the relationship between government, institutions and indigenous communities. Under this new arrangements and principles, ‘Shared Responsibility Agreements’ have been negotiated with different indigenous communities across the country. These agreements intend to coordinate government initiatives and implementation across regions, and require Indigenous Australians to comply with agreed obligations in return for government funding.

The ‘whole–of–government’ and ‘practical reconciliation’ approach to indigenous affairs raises several issues. Questions include the capacity of governments to make those partnership agreements really work; whether adequate funding will support these agreements in a way that they will not be a ‘window–dressing’ experiment, but rather be implemented and supported by the communities that are expected to comply with them; and whether monitoring and evaluation processes put in place according to the new arrangements are adequate.

The most important issue, however, is the evident abandonment of both a rights–based approach and, more importantly, the principle of self determination claimed by indigenous peoples. The policy of ‘practical reconciliation’ is clearly promoted at the expense of Indigenous Australians’ rights agenda and the recognition of indigenous self determination. The ‘participation and partnership’ model proposed by Australia’s federal government is not in accordance with the internationally recognised rights–based approach to development policy–making and the demands of self determination. The most that indigenous peoples can aspire to in their relationships with Australian governments is their ‘participation at all levels’ in order to build strong partnerships. Participation of Indigenous Australians’ communities and organisations within the Federal, State, and Local administrative systems cannot only be considered as the end–objective between governmental institutions and Indigenous Australians.

The principle of self determination needs to be included into the new government’s future policies to deal with indigenous issues. Once self determination is adopted as the foundational base upon which administrative, political and legal arrangements are formulated to deal with Indigenous Australians’ issues, then the realisation of all other indigenous rights, including socio–economic rights (right to health, housing, education, etc.) would follow as they are entwined within the right to self–determination. (Panzironi F. 2006) The recommended measures above create particular significance if Australia’s obligations under human rights law are considered. It has been established that ‘a government which is unwilling to use the maximum of its available resources for the realisation indigenous self determination is in violation of its obligations (Gunstone A. 2006, 1). With a consistent budget surplus at the Federal level, resource limitations cannot justify a false ‘inability’ to take action and address the plight of Australian indigenous peoples. The integrated process of self determination, which lies at the core of the ‘indigenous capability rights system’, must constitute the cornerstone of policy frameworks and programs to tackle indigenous issues.


CONCLUSION

Freedom, integrity and respect are the most frequent words used by indigenous peoples to describe self determination. Thus ‘self determination means the freedom for indigenous peoples to live well, to live according to their own values and beliefs, and to be respected by their non–indigenous neighbours’. As Daes emphasises ‘the underlying goal of self determination for most indigenous peoples, has not been the acquisition of institutional power. Rather, the goal has been to achieve the freedom to live well and humanely – and to determine what it means to live humanely. No government has ground for fearing that’ (Daes E.A.2000). Being also a prerequisite for the fulfilment of all other human rights, the enjoyment of self–determination can be perceived as an integrated process in which all indigenous rights, considered as interdependent freedoms, interconnect and impact on each other.

This paper demonstrates that development policy processes play a fundamental role in determining the level of enjoyment of self determination for indigenous peoples. Development policy can offer an effective avenue to overcome and bypass Australia’s historical political unwillingness to recognise and promote indigenous peoples’ right to self determination. In particular, this paper has stressed the crucial significance of considering and including indigenous peoples’ collective and individual choices within the whole policy process. It is argued that the whole and integrated process of indigenous self determination should always be considered as the core theoretical underpinning of development policies.

It has been argued that the level of indigenous peoples’ quality of life can be considered as an indicator of the enjoyment of the right to self determination, only if the level of the quality of life is assessed against appropriate principles and criteria. Because of this, development policies for indigenous peoples need to be tailored according to criteria and principles which are able to reflect and maximise the right to self determination. It has been discussed how the ‘indigenous capability rights system’ are capabilities that should be available to indigenous peoples, that is, the actual freedoms they should enjoy to lead a life founded on self determination. The focus of the overall freedom to choose a self determining course of life is considered to be the main goal of indigenous development policies.

The inclusion of Sen’s capability approach provided the opportunity to re evaluate development policies in a way that is philosophically, politically and practically more consistent with indigenous demands for self determination. It has been demonstrated how the capability approach offers foundational frameworks which respond to indigenous aspirations to self determination in a way that former development theories have not been able to. Being also a prerequisite for the fulfilment of all other indigenous rights, the enjoyment of self determination is perceived as an essential process in which all indigenous rights, considered as interconnected freedoms, interconnect and impact on each other. As a result, the indigenous capability rights system encompasses a whole integrated system in which the right to self determination is central to a unified system of mutually beneficial interrelations among all indigenous organisations.

Indigenous peoples’ quest for self determination is among the most urgent issues that the Australian public is called on to address. In the spirit of mutual respect and reconciliation, the attainment of Aboriginal and Torres Strait Islanders’ right to self determination must be seen as central to the social and political structure of Australian society, for the enhancement and survival of our precious Aboriginal and Torres Strait peoples.

APPENDIX 1 [click to view]
This diagram includes only a set of the indigenous rights stated in the UN Declaration on the Rights of Indigenous Peoples. “The relations between those rights as depicted in the diagram are exemplificative of the broader interrelated impacts that all indigenous rights have on each other. It is crucially important and intrinsic valuable that the ability to make valuable choices has in the capability approach”  (Sen, A. K 1990) ‘.


APPENDIX 2 [click to view]
The enjoyment of indigenous peoples’ right to self–determination through the lens of the capability framework.




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