Iorns, Catherine J. --- "International Update - Should the Australian Government Ratify International Labour Organisation Convention No.169?" [1993] AboriginalLawB 39; (1993) 3(64) Aboriginal Law Bulletin 3

• International Update-Should The Australian Government Ratify International Labour Organisation Convention No.169?
• Background
• Reasons Against Ratification
• Arguments In Favour Of Ratification
• Conclusion

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International Update -
Should the Australian Government Ratify International Labour Organisation Convention No.169?

by Catherine J. Iorns

Background

ILO Convention 169 (referred to here as ILO 169) is only the second international human rights instrument to deal specifically with the human rights of indigenous peoples. The first international instrument was ILO 107, which was adopted in 1957. At that time governments thought that the best way to protect the health and well-being of indigenous peoples was to assimilate and integrate them with other people in their countries. ILO 107 accordingly makes it a duty of governments to integrate indigenous peoples within their countries.

Indigenous peoples around the world rejected ILO 107 and called for the adoption of new standards that would recognise the right of indigenous peoples to exist as separate, distinct peoples. ILO 169 is the result of the reform of ILO 107.

ILO 169 was agreed to by governments in 1989. However, generally an international convention does not become law for any particular country until that country's government actually ratifies it. When a government ratifies a convention, it says that it agrees to be bound by the convention and that all the laws of its country are consistent with the rules in the convention.

For example, in 1975 the Australian government wanted to ratify the international Convention on the Elimination of All Forms of Racial Discrimination. Before it could do so it had to pass the Racial Discrimination Act 1975 so that it could make sure that Australia's laws conformed to the rules in the convention.

The issue to be decided in respect of ILO 169 is whether it should be ratified so that the rights contained therein become binding in international law on Australia.

Reasons Against Ratification

Various indigenous peoples have rejected ILO 169 because it is not good enough. They have therefore told governments not to ratify the Convention. Instead, they want to wait until a better, more comprehensive statement of indigenous peoples' rights is drawn up. Some objections to ILO 169 concern:

1. The way it was drawn up: The negotiation of ILO 169 was organised by the ILO, so it took place between representatives of governments, employers and workers' unions. Indigenous peoples were not officially represented at the negotiations so they had no rights to speak or vote on the rules being drawn up. Indigenous peoples were forced to speak to representatives outside the official meetings.

2. Self-determination: Article 1(3) suggests that indigenous peoples do not have the right of self-determination in international law; i.e., that indigenous peoples cannot form their own independent countries. Indigenous peoples object to governments telling them they do not have such a fundamental right as selfdetermination. Even indigenous peoples who do not want to form their own countries support the right of other indigenous peoples to do so if they wish.

3. Consent es consultation: Article 6(1) only makes governments 'consult' indigenous peoples before making laws that affect indigenous peoples. Indigenous peoples want governments to have to get indigenous peoples' consent before passing any such laws.

4. Article 8(2): Indigenous peoples argue that indigenous laws and customs can be too easily overridden by the government in the name of other laws of the country. Sharon Venne criticises this as representing a Eurocentric view of the world that places little value on indigenous systems of laws.

5. Land rights: The land rights articles only recognise rights over land that indigenous peoples currently use and occupy; they do not recognise any rights over land that they used to occupy and which were taken from indigenous peoples through colonisation. The articles do not give a veto over mining. The relocation provisions (Article 16) are criticised for allowing relocation in exceptional circumstances, even if indigenous peoples do not consent to it.

Arguments in favour of ratification

The basic argument in favour of ratification is that, while ILO 169 may not be the best, it is better than anything else around. This is because it actually gives rights to indigenous peoples which are not specified anywhere else in international law, nor in many countries' domestic laws. Therefore, ratification by a country could give the indigenous peoples in that country more rights than they have at present. Some examples, as applied to Australia, are:

1. Article 5 would require the government to protect Aboriginal peoples' social, cultural, religious and spiritual values and practices, which would include the protection of Aboriginal sacred sites.

2. Article 14 would require the government to recognise the rights of ownership and possession by Aboriginal peoples over lands which they traditionally use and occupy. This is what the Mabo High Court decision on native title held. The Convention could mean that the government would have to respect the High Court decision and not legislate to override it. Article 14 also provides that the government must safeguard Aboriginal peoples' rights to have access to lands which they have traditionally had access to for their subsistence (e.g., for hunting and gathering food). This could mean that the government has to allow such rights over pastoral or national park land, for example, if it has traditionally been used in this way. Governments also have to take steps to identify the lands which Aboriginal peoples traditionally occupy. This makes it look like the government has to do more than just allow Aboriginal peoples to do it in court (e.g., that it must set up a tribunal to determine which lands are traditionally occupied).

3. Article 16 provides that Aboriginal peoples must not be relocated. However, if they are relocated, they must be able to return to their traditional lands, or other lands must be provided for them. A government can only give compensation if the Aboriginal peoples themselves want that instead, and any other loss or injury must be fully compensated for.

4. Article 20 requires the government to adopt special measures for the protection of Aboriginal peoples in relation to employment, if general protection laws are not effective.

5. Article 25 provides that health services must be adequately resourced and should be community based and culturally appropriate. 25(3) says that preference must be given to the training and employment of local community health workers.

6. Part VI addresses education, including that Aboriginal children should be taught in their own language as well as having the opportunity to learn English.

Conclusion

The good and bad points outlined here are only examples, and are not exhaustive. In considering whether or not Australia should ratify ILO 169 the rights in the Convention must be examined carefully and then the following decisions must be made:

1. Whether Aboriginal peoples are already entitled to the rights in ILO 169 and, if not, whether it is desirable that they should be so entitled.

2. If Aboriginal peoples could benefit from ILO 169, then:

a. whether it is nonetheless better to forgo the rights in the Convention in favour of making a principled stand that the world's governments have not gone far enough in recognising the rights that indigenous peoples have been fighting for.

b. The alternative is acceptance of these rights now in the hope that they will make some differences in Aboriginal peoples' lives, while at the same time arguing for the adoption of more rights in a new convention. This would entail advising the government to ratify ILO 169 as a minimum measure.

The issue of ratification is to be discussed at the November meeting of the ATSIC Commissioners. ATSIC is receiving submissions until the end of October. Please direct any submissions to: Michael Davis, International Issues and Human Rights Section, ATSIC, PO Box 17, WODEN ACT 2606. Phone [phone]Fax[phone].