Indigenous Peoples Rights Situation in Australia (excerpts from the Report of the Ministry of Foreign Affairs of the Russian Federation)
Introduction
The United Nations estimates indigenous population at 476 million persons. They live in some 90 countries, representing over 6 per cent of the worlds' population and continue to face numerous problems.[1] Their rights are often violated.
Indigenous peoples are present on all continents from the Arctic to the Pacific: Eurasia, Africa, Australia and the Americas. Their races, cultures, language groups, religions, and levels of social, economic and cultural development differ. As a consequence, they have different needs, interests, aspirations and demands.
There is no single and generally accepted definition of indigenous peoples in the international law.
The United Nations Declaration on the Rights of Indigenous Peoples adopted on 13 September 2007 by resolution 61/295of the UN General Assembly stipulates that indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned (Article 9). Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live (Article 33).
As a working definition of indigenous peoples, the United Nations uses the one formulated in 1982 by Jose R. Martinez Cobo, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, according to which an indigenous peoples are "indigenous communities, peoples and nations that have a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems".[2]
Unfortunately, for the last two decades the issues of the indigenous peoples' standards of living was used by a number of States (Canada. Norway, Finland, the United States etc.) and international organizations as a means of putting external pressure, including in order to question Russia’s rights to its Arctic territories.
At the same time, almost all the Arctic States have at some periods of their history pursued the policy of assimilation and discrimination of their indigenous populations, which has left a legacy of socio-political and cultural problems. At the moment many countries are developing the mechanisms of coordination and cooperation with indigenous peoples.
Indigenous peoples of different countries are facing such common problems as gradual loss of traditional livelihoods resulting from the previous assimilation policy, the issues of respect of their rights to the lands they have traditionally occupied and their natural resources, the degradation of environment due to industrial development of territories and some States' militarist activities abroad, high unemployment rates and the indigenous communities' dependence on public subsidies.
The Arctic countries have been affected most by these negative developments, which has necessitated a separate report. This is what has determined the content of this paper examining the situation of indigenous peoples in the six members of the Arctic Council – Denmark, Canada, Norway, United States, Finland, and Sweden – and Australia, New Zealand and Japan, where the mentioned problems remain acute and, hence, demand solutions, including on the part of the international community.
These issues have been discussed in the first joint report on human rights situation in certain countries prepared by the ministries of foreign affairs of Russia and Belarus, and are regularly raised in the Russian foreign ministry's annual reports on human rights issues, including on the situation with the glorification of Nazism and the spread of neo-Nazism and other practices that contribute to fuelling contemporary forms of racism, racial discrimination, xenophobia and related intolerance (the most recent report was issued in September 2024).
Australia
Aboriginal and Torres Strait Islander people[3] make up about three per cent of Australia's total population. Before European colonization, the mainland was inhabited by about 500 different tribes with a total population, according to various estimates, from 300 to 750 thousand people. They had primitive communal systems with hunting, fishing and gathering as their main livelihood activities. Each tribe inhabited a certain territory, which played a key role in terms of survival. Colonization involved the extermination of the local population defending their territory and their displacement into areas that were not suitable for full existence. Infections brought in by Europeans, to which the natives were not immune, also posed a significant challenge. As a result, by the early 20th century, their number was reduced to 60,000 people.
Slave labour was formally prohibited in the Australian colonies. However, Aboriginal people had to agree to work for free on pain of death or eviction. Most of them were employed in agriculture, pearl and sea cucumber fishing, and prostitution. Children worked as domestic servants. Although employers were formally required to pay their workers, local authorities could restrict the issuance of wages to the indigenous population under the pretext of preventing alcohol consumption and drug use. Aboriginal and Torres Strait Islander people often lacked access to the sums accumulated in bank accounts from where they were distributed to businesses and corrupt officials.
On top of effectively slave labour, the indigenous population was victimized by a policy of forced assimilation. Thousands of Aboriginal children were separated from their parents between 1910 and the 1970s as part of community integration measures. This resulted in the emergence of so-called "Stolen Generations" (a term commonly used in local media and scientific articles). They were not allowed to communicate in their own language or keep in touch with family and friends. Authorities selected children to be placed in foster European families and forcibly enrolled them in state and church educational institutions.
The first version of the Commonwealth of Australia Constitution, which came into force on 1 January 1901, segregated Aboriginal and Torres Strait Islander peoples from the rest of the population. It is a common misconception that they were mentioned in the Constitution with reference to a certain Flora and Fauna Act. In fact, their status was characterized by the following two articles: Article 51, which stated that the Union shall have power to make laws with respect to people of any race, other than the aboriginal race, for whom it was deemed necessary to make special laws; and Article 127, which stated that natives in reckoning the numbers of the people of the Commonwealth aboriginal natives shall not be counted. The 1902 Franchise Act left them unable to vote.
The movement for indigenous peoples' rights only began to gain ground by the 1960s. Aboriginal and Torres Strait Islander peoples were formally recognized as part of the Australian population in 1967 following a referendum to revise the above-mentioned articles.
In 1973, the Whitlam government adopted an approach of improving the welfare of Indigenous Australians by empowering them to take part in important decision-making processes concerning the future; however, these plans were thwarted by a change of government in 1975.
In 2004, the New South Wales Government announced a program aimed at refunding so-called "stolen wages" on an indexed basis to all those who could provide documentary evidence specifying the amounts. A total of USD 9 million was repaid under the scheme. As this evidence was usually impossible to provide, since 2009, state authorities consider lump sum compensation requests of up to USD 7,680 based on circumstantial evidence. Similar programs are being implemented in Queensland and Western Australia.
In 2008, the Australian government issued an official apology to the continent's indigenous population for the "inhumane policies of its predecessors", announcing the Closing the Gap initiative to engage Aboriginal people in economic and community activities. However, of the program's seven stated targets, only two have seen some progress: an increase in the proportion of Indigenous Australians completing Grade 12, and access to preschool education. Yet, there is still a gap in mortality rates, particularly child mortality. The targets for greater overall school attendance, literacy and employment rates have not been met.
The Indigenous population of Australia is still not recognized in the country's Constitution and has no special legal protection.
A failed constitutional referendum held on 14 October 2023 (more than 60 per cent voted "no") to establish an advisory body within the Australian parliament – the so-called "Indigenous Voice to Parliament" referred to in the 2017 Uluru Statement from the Heart. They have demonstrated not only the government's failure to address the entrenched problems of native Australians, but also the remnants of a colonial mindset in much of Australian society, about 90 per cent of which was formed by several "waves" of immigrants from Europe.
The results of the referendum were criticized by the Office of the UN High Commissioner for Human Rights. The High Commissioner was "deeply disappointed at the missed opportunity to officially recognize Aboriginal and Torres Strait Islander Peoples in Australia's Constitution and give them a greater voice alongside the country's Parliament."[4] The Special Rapporteurs of the UN Human Rights Council (HRC) on the right to development and the rights of Indigenous Peoples have also previously urged support for this legislative initiative.[5]
Today, the indigenous population remains the poorest and most vulnerable part of Australia's society. Most of them live in remote and rural areas, which also affects their incomes and limits access to health and education services. Poor living standards not only fuel criminality, but also affect both physical and mental health of the indigenous population.
According to the Committee on the Rights of Persons with Disabilities, a significant number of persons with disabilities expressing suicidal ideation, particularly within Aboriginal and Torres Strait Islander communities, due to, inter alia, lack of support, poverty and isolation.[6]
Persons with disabilities, women and minors are the most vulnerable group in indigenous communities. In November 2019, the Committee on the Rights of the Child criticized the Australian government noting "that Aboriginal and Torres Strait Islander children continue to be disproportionally affected by family and domestic violence, including sexual violence, both as victims and witnesses."[7]
In April 2024, the EMRIP notes that many of the concerns and recommendations contained in the concluding observations to Australia of the UN Committee on the Rights of the Child in November 2019 are still of relevance today in the State of Western Australia, including the concerns over the continuing overrepresentation of Aboriginal and Torres Strait Islander children in alternative care.[8]
According to the November 2023 Family Matters annual report,[9] as of June 2022 there were 22,328 Indigenous children in out-of-home care – the highest number on record ever monitored. Moreover, less than half of Indigenous children in care live within the community and maintain their identity. Ten years ago, the figure was over 65 per cent. SNAICC chairperson Muriel Bamblett said it was concerning to see little traction in improving outcomes across all states and territories. She described current child protection systems as "racist" and urged authorities to work more closely with Indigenous communities to better understand the sector's complexities.[10]
Law enforcement officers continue to treat the indigenous population in a biased way. The information provided by "The Guardian" reveals the true scope of the problem. With reference to the Australian Institute of Criminology and several other line agencies, "The Guardian" reports 500 indigenous deaths over the last 30 years (1991 – 2021) at police stations and in similar circumstances.[11]
In December 2015, a 26-year-old Dunghutti man David Dungay died in his prison cell due to asphyxia. The prisoner was restrained by the guards after he had refused to follow their order to stop eating biscuits. A video footage shows that before fainting he screamed 12 times that he could not breathe. The coroner of the State[12] found that none of the guards shall be subjected to disciplinary measures, let alone criminal charge.[13]
The trial of police officer Zachary Rolfe, who shot dead 19‑year‑old Kumanjayi Walker from the Aboriginal community of Yuendumu in November 2019, was another high-profile case. The teenager had a criminal record and was wanted by the police; during his first attempted arrest, he had threatened officers with an axe; he had stabbed Rolfe in the shoulder with a pair of scissors before the officer shot him. Wounded Walker was brought to the police station where he received first aid. But the local hospital was closed, and the nearest city of Alice Springs is 300 km away. The boy died about an hour later. The incident sparked protests of the Aboriginal community demanding that those guilty of the death of their member be punished, thus, the murder charges were filed within a few days. Chief Minister of the Northern Territory Michael Gunner promised that "consequences would flow." In March 2022, the police officer was acquitted.[14]
In September 2019, Joyce Clarke was shot by a police officer as she walked down a street outside her home in Geraldton holding a kitchen knife in her hand. The woman had mental issues and had been released from hospital a few days before, after a suicide attempt. The police officers called by her relatives asking to help them take her to hospital confirm that the woman stood almost still and there were no sudden movements or threats on her part. The jury found the police officer who fired the shot not guilty.
The said incident also highlighted the persisting problem of prejudice towards the indigenous population on the part of medical staff (Joyce Clarke was released from hospital despite her clearly psychotic state). Other high-profile cases include the death of Naomi Williams, a six months' pregnant 27‑year‑old woman. The young woman went to a hospital 18 times suffering from nausea and pain, but did not receive proper treatment or a referral. She and her unborn child died of sepsis. The infection proved treatable by a course of antibiotics. Following an inquest (that took three years) the State coroner merely issued recommendations, leaving their implementation to the discretion of the hospital administration. Those guilty remained unpunished.[15]
In 2023, indigenous Australians (3.8 per cent of the country's population) accounted for almost 32 per cent of Australia's total prison population a quarter of all prison deaths. Legal assistance centres have documented numerous cases of biased and cruel treatment of Aborigines in penitentiary facilities.
Many indigenous peoples live in remote and hard-to-reach areas, which severely limits their access to medical, educational, legal and other services and reduces their financial opportunities. So far, some progress has been made in education only. In other aspects, the gap remains, with the Aboriginal population still severely disadvantaged, in employment, mortality, and imprisonment rates.
In November 2017, the Committee on the Elimination of Racial Discrimination (CERD)[16] and the Special Rapporteur on the Rights of Indigenous Peoples of the UN Human Rights Council[17] also noted the plight of indigenous people in Australia, including in terms of political participation, the lack of protection of their land rights, socio-economic discrimination, disproportionate rate of violence against indigenous women, as well as extremely high imprisonment rate among Aboriginal people, especially children (they are imprisoned far more often than the descendants of the immigrant population.)
In September 2022, the UN Human Rights Committee found that Australia had failed to adequately protect Torres Strait Islanders against "the effects of climate change." The Committee arrived at this conclusion upon examination of a complaint filed by representatives of eight Australian islands. The plaintiffs claimed that the state's failure to adequately protect their territories against extreme weather conditions had resulted in the indigenous peoples' inability to engage in farming, traditional crafts, and many ceremonies inherent in their culture. The Committee called on the Australian government to compensate the indigenous Islanders for the harm suffered and engage in meaningful consultations with communities to develop measures to secure their safe existence on the islands.[18]
Australian laws governing Aboriginal cultural heritage need to be reformed because mining companies still manage to find loopholes to obtain consent for the destruction of indigenous artefacts when conducting extractive activities. Causing destruction or alterations to Aboriginal territories is a crime under Australian law. Yet regulations may be more flexible at the State level[19].
In May 2017[20], experts of the Committee on Economic, Social and Cultural Rights (CESCR) expressed concern over Australia's non-compliance with the principle of free, prior and informed consent of Indigenous Peoples while developing policies with regard to extractive activities on the lands traditionally used by them.
The Indigenous ancestral land of Murujuga in Western Australia, which is home to the world's oldest and largest collection of petroglyphs, is under threat of destruction by the country's biggest fossil fuel project, the Burrup Hub, owned by Woodside Energy. In this regard, protests erupted across the State in October 2023, which met a violent crackdown by the police. Some activists faced the strongest form of charges – some protesters can face up to 20 years in prison.[21] In New South Wales and Victoria, where protesters have been fighting logging on Indigenous lands, the State governments introduced penalties (from fines to years in prison) in 2022 targeting people whose actions (such as blocking roads and ports) disrupt businesses and economic activity.
In April 2024, the CERD strongly criticized the fact that, following the repeal of the Aboriginal Cultural Heritage Act of 2021 (WA) on 15 November 2023, the state government, without consultation with, or consent by, Aboriginal Peoples, decided to reinstate, with some amendments, the former Aboriginal Heritage Act of 1972.[22] The Committee is concerned that this may amount to a breach of the State party's obligations enshrined in the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and in this regard recalls its previous concluding observations in which it recommended the State party to ensure that the principle of free, prior and informed consent is incorporated into pertinent legislation and fully implemented in practice. The Committee calls upon the State party to ensure that no decisions directly relating to the rights and interests of Indigenous Peoples are taken without their informed consent. On that basis the Committee insists that the landowners cease and desist all operations that have negative implications for the cultural heritage rights of Indigenous peoples. Moreover, all consents to landowners given under the post 15 November 2023 legislative framework are duly reviewed or revoked in light of the State party's obligations under ICERD and other international human rights obligations and standards.[23]
To smooth out the impression of obvious failures of public policy on the issue, the Australian government demonstrates deference to the problems of the indigenous population and a desire for maximum involvement. However, in practice Canberra fails to turn over the shameful page of its colonial past.
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