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PATHWAYS TO TOMORROW Law, Land and Justice. UN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES Implications for Australia Greg McIntyre SC. Role of International Law in Australia. Koowarta v Bjelke Petersen – Stephen J RDA preamble CERD in force on 2 January 1969
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PATHWAYS TO TOMORROWLaw, Land and Justice UN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES Implications for Australia Greg McIntyre SC
Role of International Law in Australia • Koowarta v Bjelke Petersen – Stephen J • RDA preamble • CERD in force on 2 January 1969 • Desirable pursuant to power to make laws re external affairs re people of a race, immigration – give effect to Convention • International obligation to suppress racial discrimination – respect for human dignity, fundamental rights – part of customary international law = external affairs • Constitution s 51(xxix)
Property in International and Common Law • ‘Property’: • a legal relationship with a thing: Dalziel • A legally endorsed concentration of power over things and resources:Yanner v Eaton Right to own property alone as well as in association with others: UDHR Art. 17; CERD Art. 5(d)(v); Koowarta; Mabo (No 1) Care and Management: Brophoand RDA S 10(3) Arbitrary deprivation: UDHR Art. 17 Mabo (No 1); Bropho
Bropho & UNDRIP +++ Right to participate in public affairs • – management decisions – • CERD, Art 5(b) • ICCPR, Art 1(1) • ICESCR, Art 9(1) • UNDRIP, Art 1-5, 8(1), (2)(a), (b), (c) and (d), (9), 18, 19, 20(1), 21(1),23,26,32(2))4,35
Bropho & UNDRIP ++ Right to equal treatment in tribunals • Private clause and denial of natural justice clauses in Reserves Act • CERD, Art 5(a) • UDHR, Art 8 • UNDRIP, Art 27 and 40
Bropho & UNDRIP ++Land • Right to lands, territories and resources traditionally owned, occupied, used or acquired: UNDRIP, Art 26 • Right to property: CERD, Art 5(d) (v) • Right not to be arbitrarily deprived of property: UDHR, Art 17(2) • Right not to be forcibly removed from lands or territories, UNDRIP, Art 10 • Right to protect and develop sites manifesting culture: UNDRIP, Art 11 • Right to redress for taking land, without free, prior and informed consent:UNDRIP, Art 28
Bropho & UNDRIP • Right to be actively involved in determining health, housing and economic and social programmes: UNDRIP, Art 23 • Right to maintain spiritual relationship with land and cultural sites: UNDRIP, Art 12, 25
Bropho & UNDRIP + Right to own property • CERD, Art 5(d)(v) • UNDRIP, Art 26
Bropho beyond UNDRIP • Right to freedom of movement and residence: CERD, Art 5(d)(i): Cp Gerhardy v Brown • Right to freedom from arbitrary interference with one’s home: ICCPR, Art 17
Belize and Maya Peoples • Belize – Monarch QEII – until 1973 British Honduras – self governing from 1964 • Mayan civilization between 1500 BCE-300BCE • Belize pop abt 300,000 – 49% = mixed Mayan/European (Mestizo) – 10 ethnic groups • Indigenous Mayans = 10% of population
Maya Indigenous Communities v BelizeInter-American Commission on H R 2004 • Petition: breach of American Declaration of Rights and Duties of Man 1948 • Right to life, Art I • Right to equality before law, Art II • Freedom of religion, Art III • Family protection, Art VI • Health, Art XI • Fair trial, Art XVIII • Participate in government, Art XX • Property, Art XXIII • Failure to protect rights in granting oil and logging concessions
Maya Peoples Sup Ct claim • Supreme Court of Belize 2007 • Maya Communities in Southern Belize • Alleged violations of Belize Constitution, s 3 – fundamental rights whatever race s 16 – no discrimination on gronds of race ss 3(d) and 17 – right to property, ss 3(a) and 4 – rights to life, liberty, security of person and protection of law • Failure to recognise, protect and respect customary land rights i.e., property protected by Constitution • Property rights recognised by Inter-American Commission on Human Rights • Government issue or threat to issue leases, grants and concessions without respecting traditional land tenure
Supreme Court findings • Maya customary land tenure exists in Southern Belize • Individual and communal rights are usufructuary – occupy, farm, hunt, fish and take for their own use fruits and resources in accordance with Maya customary law and usage • Communal title
Treaty obligation findings • Right to property: ICCPR CERD Charter of Organisation of American States, DRIP, Art 26 • Injunction to abstain from acts affecting Maya collective traditional title unless pursuant to informed consent and compliance with safeguards of Belize Constitution
Suriname & Saramaka • Republic of Suriname -formerly known as Dutch Guiana • Suriname independent from the Netherlands since 1975 • Saramaka (or Saramacca) - since 2010 “Saamaka” People = 1/6 Maroon People • Maroon People = 12% of Suriname population = 1/8 ethnic groups • Saamaka population 55,000 (1/3 live in French Guinana since 1990) • Saamaka people escaped from slavery 17/18 Century in treaty with the Dutch to live along upper Suriname River and tributaries • Now live in colonial/Alcoa housing in lower Suriname River – hydro scheme for aluminium smelting flooded ½ land
Saramaka People v Suriname Inter-American Court of Human Rights American Convention on Human Rights (ratified by Suriname 1987) Inter-American Commission on Human Rights application against State of Suriname Petition of Association of Saramaka Authorities and and 12 Saramaka captains
Commission conclusions • Violation of right to property: ACHR, Art 21 • No effective measures to recognise communal property rights • Violation of the right to judicial protection: ACHR, Art 25 • No effective access to justice • Failure to recognise or give effect to collective rights to land and territories of Saramaka People: ACHR, Art 1 and 2
State objections • Lack of standing of petitioners • Lack of standing of representatives • Irregular procedures before the Commission • Non-compliance with time limits under Convention • Non-exhaustion of domestic remedies • Duplication of international proceedings • Lack of jurisdiction for acts re Dam prior to current sovereignty (facts not in application)
Evidence of Saramaka People & Experts • Affidavits and testimony of clan members and representatives and Association office holders re • destruction of farms by foreign logging company • Efforts to obtain redress • Efforts to protect land and resources • Attempts to settle case with the State • Documentation of traditional use • Customary law governing ownership • Saramaka treaty rights • Contemporary use of land and resources • Impact of mining and displaced villages • Flooded villages and forced displacement • Opinions of Anthropological experts
Findings of IACHR Saramaka People are tribal community subject to special measures ensuring full exercise of rights: AHRC Art 1(1), 2 Rights to use and enjoyment of communal property protected: AHRC Art 21; ICCPR Art 27 State has not recognised right to property (mere privilege) Saramaka people right to use and enjoy natural resources to prevent their extinction as a people – necessary for survival, development and continuation of way of life
IACHR Findings re resource extraction Concessions for exploration and extraction of resources issued by State: Failure to comply with International law safeguards: AHRC, Art 21 Restrictions on right of property a) previously established law b) necessary c) proportional d) aim of achieving legitimate objective of democratic society Safeguards against denial of survival: AHRC, Art 1 • Effective Saramakas participation re development or investment plan • Reasonable Saramakas benefit • Environmental and social impact statements
IAHRC Findings re lack of recognition and remedies • Lack of recognition as juridical personality does not effect rights under domestic law to judicial protection and property: right to recognition is a special measure: AHRC Art 3, 21 and 25 • Inadequate effective remedies providing judicial protection against violation of rights: AHRC Art 3, 21 and 25
IAHRC reliance on UNDRIP • Right of Indigenous Peoples to determine and develop priorities and strategies for development or use of lands, territories and resources: UNDRIP, Art 32(1) • State obligation to consult in good faith to obtain free and informed consent to projects affecting land, territories or resources, UNDRIP, Art 32(2); ILO Conv 169, Art 15(2) • Effective State mechanisms for just and fair redress and measures to mitigate adverse environmental, social, cultural or spiritual impact, UNDRIP, Art 32.3; ILO Conv 169, Art 15(2) = right to just compensation: AHRC, Art 21(2) = right to share in benefits resulting from deprovation of use of traditional lands and resources