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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



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:



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