The Aborigines in Australia

1. The Aborigines in Australia Project Group 1

2. Table of Content • History • CitizenshipRights • Culture • Aboriginal law • Aboriginestoday • Constitutionalreforms • Conclusion

3. History • First inhabitants of Australia • Theysettled in the desert and along the coastline • Mobile groups

4. History • James Cook explored the eastcoast of Australia and New Zeeland in 1770 • First convoy of British settlersarrived in 1778 • Prisoners and soldiers

5. History • The British discovered the aborigines • TheyclaimedthatAustraliawas a « Terra Nullius » • Competition for the lands • Armedconflicts • Victory of the Europeans

6. History • Europeansbrought a lot of diseases • Aborigineshad no immunityagaintsit • From 1869 until 1970: policy of assimilation of aboriginalchildren • 100.000 children have been stolenfromtheirfamily

7. Citizenshiprights • Differencebetween the British subjects and the aborigines • « Aboriginal protection Acts » = gave to the guardians a complete power over aborigines’ lives

8. Citizenshiprights • Federation of Australia in 1901 • Exclusion of the Aborigines in the federalsphere • Exlcusion of the Aboriginesfrom the fundamentalrights • Citizenshiprightsfor aboriginesundercertain conditions

9. Citizenshiprights • Struggle of the aboriginalorganizations • Big shifts after the Second World war : - The 1947 Social Services Consolidation Act • The 1948 Nationality and Citizenship Act • The 1962 Commonwealth Electoral Act

10. Culture • Land is the core of all spirituality • Weapons

11. Culture • The Dreaming • Tradition of storytelling • Aboriginal music

12. Aboriginal Law • Customary Aboriginal Law • Conflict withAustralian Law • Different disputeresolutionmethods • Double punishment

13. Aborigines Today • Represent 2% of population • Return of the land • Bad conditionsregardinghealth, housing, education, employment and contact withlegal system • Effortstowardsreconciliation: • National Reconciliation Week • National Sorry Day • Public Apology to the Stolen Generation • High level of discrimination

14. Constitutional reform • Human andminorityrights not protectedbytheAustralianConstitution, only in legislation • IndigenousAustraliansshouldberecognized in thePreamble (already in some StateConstitutions)

15. Non-discriminationclause • ProtectionfromracialdiscriminationgivenbyRacialDiscriminationAct (canberepealed) • Suspended on severaloccasions (IndigenousAustralianissues) • Non-discriminationclauseshouldbeadded to AustralianConstitution

16. Non-discriminationclause • Article 26 ICCPR “Allpersons are equalbeforethelawand are entitledwithoutanydiscrimination to theequalprotectionofthelaw. In thisrespect, thelawshallprohibitanydiscriminationandguarantee to allpersonsequalandeffectiveprotectionagainstdiscrimination on anygroundsuch as race, colour, sex, language, religion, political or otheropinion, national or social origin, property, birth or other status. “

17. RemovalofSect. 25 • Provision as to racesdisqualifiedfromvoting “ Forthepurposesofthe last section, ifbythelawofanyStateallpersonsofany race are disqualifiedfromvoting at electionsforthe more numerousHouseoftheParliamentoftheState, then, in reckoningthenumberofthepeopleoftheState or oftheCommonwealth, personsofthat race resident in thatStateshall not becounted. “

18. RemovalofSect. 51 (xxvi) • LegislativepowersoftheParliament "TheParliamentshall, subject to thisConstitution, havepower to make lawsforthepeace, order, andgoodgovernmentoftheCommonwealthwithrespect to: . . (xxvi)  thepeopleofany race, forwhom it is deemednecessary to make speciallaws;“ . .

19. Self-Determination • United Nations Declaration on the Rights of Indigenous Peoples • Article 3: Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. • Article 4: Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

20. Self-Determination • History • Not used to western law system • Cultural Differences

21. Human rights • Customary Aboriginal law in respect to Human Rights. • Self-government in internal situations, within the framework of Human Rights.

22. Commonwealth of Australia Constitution Actpossiblechanges • Surveys of Australians - 80 percent of respondents were in favour of amending the Constitution so that there is a new guarantee against laws that discriminate on the basis of race, colour or ethnic origin. • Expert Panel - It was recomended to remove the two provisions that contemplate discrimination - section 25 and section 51(xxvi). Section 25 For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted. Section 51 The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xxvi) the people of any race , other than the aboriginal race in any State, for whom it is deemed necessary to make special laws;

23. If we erase Section 51 (xxvi) - Section 51(xxix), that gives the Parliament the the right to legislate with respect to "external affairs" - international treaties and conventions. But Would it be better for the Aborigines, if the Parliament has a power to make special laws with respect to Aboriginal and Torres Strait Islander peoples regardless of obligations from "external affairs"? + Recognition of Aboriginal and Torres Strait Islander peoples will be incomplete without a constitutional prohibition of laws that discriminate on the basis of race.

24. Comparisonwith Canada In Canada, the Charter of Rights and Freedoms was enshrined in the Canadian Constitution. The charter is a part of the Constitution Act 1982. The aboriginal and treaty rights of the aboriginal peoples of Canada receive direct constitutional protection. Article 35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit, and Metis peoples of Canada. (3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. Article 35.1 The government of Canada and the provincial governments are committed to the principal that, before any amendment is made to Class 24 of section 91 of the "Constitution Act, 1867", to section 25 of this Act or to this Part, …... (b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item.

25. How to change the constitution? 1. Derogationof section 25 and section 51(xxvi) of the Constitution. 2. Recognition of Aboriginal and Torres Strait Islander peoples. - Aboriginal and Torres Strait Islander peoples are original occupants od Australia - Respecting cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples. The Aboriginal and Torres Strait Islander languages are the original Australian languages and part of national heritage. - The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples. - Representatives of the Aboriginal and Torres Strait Islander peoples shall have a right to participate in the discussions on the possible changes in laws regarding their rights.

26. How to change the constitution? 3. Prohibition of discrimination. • Prohibition of discrimination on the grounds of race, colour or ethnic or national origin. This prohibition does not include the making of laws or for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group. 4. Self-Determination. • Giving the Aboriginal people the right of self-government in internalsituations.