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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 tomorrow law land and justice

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
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 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
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
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
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
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
Bropho & UNDRIP + Right to own property
  • CERD, Art 5(d)(v)
  • UNDRIP, Art 26
bropho beyond undrip
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 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 belize inter american commission on h r 2004
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
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
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
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
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
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
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
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
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
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
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
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
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