United Nations Permanent Forum on Indigenous Peoples
7 – 18 May
The Doctrine of Discovery: its enduring impact on indigenous peoples and the right to redress for past conquests (articles 28 and 37 of the United Nations Declaration on the Rights of Indigenous Peoples).
http://social.un.org/index/IndigenousPeoples/UNPFIISessions/Eleventh.aspx
The article by Andrew Chalk (link below) provides a good account of the role of an expert in a Federal court case – but presumes that the duty of the modern anthropologist is solely to the Anglo-Australian State and introduced systems of law.
The modern presumption is that a professional anthropologist in Australia has an overriding duty to the Anglo-Australian State and is not free to acknowledge the co-existing sovereignty of Australia’s First Peoples.
The Big Cheese Question is – can modern anthropologists in Australia also recognise the unextinquished sovereignty of Australia’s First Peoples?
When cross-cultural expert anthropologists take an oath to tell the whole truth and nothing but does that not include the question of the sovereignty of Australia’s First Peoples?
And if not, how are their professional careers advanced by the acts of judgement and personal choices they are then required to make – and at what cost to the well-being and vital interests of the indigenous people they claim to be able to represent by modern anthropological means?
Some indigenous lawmen have long argued for “Two Laws” – that is, as an indigenous Australian solution, an inclusive both-and approach with dual sovereigns – co-existing sovereignty – rather than an exclusive either-or choice.
We may yet see elements of this emerge in the Muckaty court case.
Meanwhile by way of some background reading (extract only, emphasis added):
Anthropologists and Violins – A lawyer’s view of expert evidence in native title cases
by Andrew Chalk
Paper delivered to the Native Title Conference: Expert Evidence in Native Title Court Cases: Issues of truth objectivity and expertise
6-7 July 2001
Adelaide University
…
The purpose of this paper is to set out the legal obligations of experts appearing in native title cases and to offer some suggestions as to steps which expert witnesses can take to ensure that they give their best evidence, irrespective of on whose behalf they are called.
The burden carried by anthropologists in native title matters, irrespective of whether they are being called on behalf of claimants or respondents, is heavy. It is not only their professional reputations which are at stake.
Anthropologists are acutely aware of the significance of the proceedings to claimants and often feel an overwhelming sense of responsibility to do justice to the claimants’ case. Unlike expert witnesses in many other types of cases, such as a doctor in a worker’s compensation claim or an engineer in a product liability case, the nature of anthropological evidence is generally not limited to a discrete issue. It does not involve a routine
scientific test carried out in a laboratory.
Commonly it will encompass an examination of a whole society, the
relationship of the people in that society to one another, their relationship as a group to surrounding peoples and to their colonisers and, of course, their relationship to their land. It is a field of expertise which necessarily involves personal relationships between the anthropologist and the subjects of their inquiry, often over many years.
…
The expert’s duty to the court
The common law has long laid down rules regarding the duty of an expert in giving evidence to a court.8 The Federal Court has given its own practice directions in relation to the giving of expert evidence in that court.
These directions are titled Guidelines for Expert Witnesses in proceedings in the Federal Court of Australia.9
Lawyers are obliged to give a copy of the Guidelines to an expert at the time the expert is retained for the purpose of giving evidence in the proceedings. The Guidelines cover both the expert’s duty to the court and the form in which their evidence must be presented.
Full article:
http://www.aas.asn.au/publications/Conference%202001/Chalk.pdf
See also CM7 at: http://www.fedcourt.gov.au/how/practice_notes.html#cm7
“In an ‘open letter’ to Australia’s prime Minister Julie Gillard, Michael Anderson requests an answer as to whether the 1967 referendum to amend section 127 of the Constitution was valid.”
The Expert Panel delivered its report recognising Aboriginal and Torres Strait Islander peoples in the Constitution to the Prime Minister on 19 January 2012.
Executive summary
Recommendations
Recommendations for changes to the Constitution
The Panel recommends:
…
5 That a new ‘section 127A’ be inserted, along the following lines:
Section 127A Recognition of languages
(1) The national language of the Commonwealth of Australia is English.
(2) The Aboriginal and Torres Strait Islander languages are the original Australian languages, a part of our national heritage.
Media Releases
Towards Constitutional Recognition of Indigenous Australians
Date: 19/01/2012
Joint Media Release with:
The Hon Julia Gillard MP, Prime Minister
The Australian Government today received the expert panel’s report on the recognition of Indigenous people in the Australian Constitution.
Over the past year, the panel of Indigenous and community leaders, constitutional law experts and parliamentary members have led wide-ranging national public consultations to develop options to recognise the special place of Aboriginal and Torres Strait Islander peoples in the Constitution.
The panel talked to more than 4,600 people, in more than 250 meetings in 84 locations across the country and received more than 3,500 submissions.
They also sought extensive advice from Indigenous leaders and constitutional experts and gathered data through research and surveys.
The Government will now carefully consider the panel’s recommendations before determining the best way forward.
The Australian Constitution is the foundation document for our laws and our government, but it is silent on the special place of our first Australians.
Constitutional recognition of Indigenous Australians is a significant step towards building a nation based on strong relations and mutual respect, which recognises the unique and special place of our first peoples.
The Government thanks the panel, including co-chairs Mark Leibler and Professor Patrick Dodson for their dedication and tireless work over the past year. They have helped build a strong foundation for change.
We also thank the Australian Human Rights Commission, the National Congress of Australia’s First Peoples and Reconciliation Australia, and the many people who lodged submissions, participated in consultations or helped the panel with their research.
The Government does not underestimate the challenge of achieving nation-wide consensus. Change will not happen without support from across the political spectrum and the support of the majority of Australians.
The National Apology to Indigenous Australians helped build a bridge of respect between Indigenous and non-Indigenous people. It helped generate the trust so we could work together to tackle Indigenous disadvantage.
The recognition of Indigenous people in the Constitution is another step in that journey, a step that is critical in our efforts to close the gap.
The panel’s report can be found at www.youmeunity.org.au. We encourage all Australians to visit the site to learn more and to register their support for Indigenous constitutional recognition.
Congress Media Releases 19 January 2012
Constitutional Change for Equality for All Australians
Congress says Australians who support equality and fairness in our Constitution should support recommendations to change the nation’s founding document.
“The message from this report is clear, it’s time to eliminate racism from the Australian constitution and to prohibit racial discrimination,” said Congress Co-Chair, Jody Broun.
“If taken to Referendum and passed, these reforms will establish the Constitution as a pillar against racism.
“This report is the culmination of months of public consultations and over 3,000 submissions with careful consideration of the best way to achieve successful and meaningful recognition of Aboriginal and Torres Strait Islander peoples.
“It is imperative that Australians make an informed decision when voting in any future Referendum on this issue. Congress encourages everyone to read the comprehensive report and join us in supporting the recommendations.
“We call on our political leaders to be brave in taking the country forward on this issue,” she said
Congress Co-Chair Les Malezer said Constitutional recognition was one of many long term goals of Aboriginal and Torres Strait Islander peoples.
“Although these reforms are substantive, Congress acknowledges that they do not address calls for a treaty or greater protection of the rights.
“A Referendum will not achieve those aspirations, so we are recommending simple, logical and just changes that can be supported by a majority of Australians.
“They will not diminish or extinguish the campaign for self-determination to be the standard to be met by all governments.
“Along with Aboriginal and Torres Strait Islander peoples’ sovereignty, these issues must be dealt with separately.
“Our Members and Delegates have already decided Constitutional Reform is among the top Congress priorities.Congress Members want us to have a major role in promoting Constitutional reform, in consulting with Aboriginal and Torres Strait Islander peoples, and in educating the whole community on the issues involved. We have remained committed to their views during this process,” he said.
Congress encourages everyone to read the full report, understand the issues and political challenges, and then add their own voice to achieve Constitutional recognition of Australia’s First Peoples.
A whole range of documents including the final report can be found on the You Me Unity site.
Congress Issues: Sovereignty and Treaty
The proposed Referendum will not adversely affect any efforts being made by Aboriginal and Torres Strait Islander peoples for a Treaty with the Government.
The Panel’s report also says that the recommendations for Constitutional reform would not adversely affect any future legal claim of sovereignty.
Check out more about these issues here.
Plain English Guide to Panel’s Recommendations
The Panel recommends that:
• section 25 is removed
• section 51(xxvi) is removed
• a new section 51A is adopted to recognise Aboriginal and Torres Strait Islander peoples and to preserve the Australian Government’s ability to pass laws for the benefit of Aboriginal and Torres Strait Islander
peoples
• a new section 116A is adopted, prohibiting racial discrimination
• a new section 127A is adopted, recognising Aboriginal and Torres Strait Islander languages while
confirming that English is Australia’s national language
• the Government considers carefully the Panel’s advice on how to achieve a successful referendum.
To read more from the plain English guide, click here
From the Executive Summary of the Expert Panel Final report:
“The question of sovereignty
At consultations and in submissions to the Panel, there were numerous calls for a reappraisal of currently accepted perceptions of the historical relationship between indigenous and non-indigenous Australians from the time of European settlement. Chapter 9 discusses one of the significant issues to have emerged during the consultation process: the aspiration of some Aboriginal and Torres Strait Islander peoples for recognition of their sovereign status.
The Panel has concluded that any proposal relating to constitutional recognition of the sovereign status of Aboriginal and Torres Strait Islander peoples would be highly contested by many Australians, and likely to jeopardise broad public support for the Panel’s recommendations. Such a proposal would not therefore satisfy at least two of the Panel’s principles for assessment of proposals, namely ‘contribute to a more unified and reconciled nation’, and ‘be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums’. While questions relating to sovereignty are likely to continue to be the subject of debate in the community, including among Aboriginal and Torres Strait Islander people, the Panel does not consider that these questions can be resolved or
advanced at this time by inclusion in a constitutional referendum proposal.”
CONGRESS SURVEY SHOWS KEY ISSUES FOR MEMBERS
The National Congress of Australia’s First Peoples today released the results of its first survey on policy priorities from its Aboriginal Torres Strait Islander membership. Health, sovereignty and education were highlighted by the majority of members as the most important areas of policy.
28 July 2011
CONGRESS SURVEY SHOWS HEALTH, EDUCATION, SOVEREIGNTY KEY ISSUES FOR MEMBERS
The National Congress of Australia’s First Peoples today released the results of its first survey on policy priorities from its Aboriginal Torres Strait Islander membership.
The ground-breaking survey gives the Congress guidance on priority work over the next 12 months.
Congress Chief Executive Lindon Coombes said the report was the just the start for more Congress surveys in the future.
“These results stand as a record, at this point in time, of the views of a significant sample of Aboriginal and Torres Strait Islander Australians,” said Mr Coombes.
“We are very proud of our first efforts to gauge the mood and priorities of our members as we confirm our policies and platforms to engage with Government.
“These results are our members speaking loud and clear and speaking for themselves. Our challenge now is to turn these voices from ideas to actions,” said Mr Coombes.
Report Summary:
Health, sovereignty and education were highlighted by the majority of members as the most important areas of policy.
• More than half of the respondents – 55% – chose health, education and sovereignty as their top priority policy areas Within those policy areas
• Health – mental health and emotional wellbeing (42%) and access to health care (21%)
were highlighted
• Education – early childhood education (31%) and school and transition to work (31%) were the areas of most concern
• Sovereignty – recognition of Aboriginal and Torres Strait Islander people in the Constitution was seen as a top priority (88%), 77% said constitutional protection of Indigenous rights was also important and 58% highlighted constitutional protection against racial discrimination
Accountability for Governments and the Congress itself, partnerships and research were highlighted as being the most important areas of operation to members.
The full report can be downloaded from the website www.nationalcongress.com.au
Find out more www.nationalcongress.com.au or on Facebook www.facebook.com/congressmob
A 2008 submission from the Northern Land Council to Senate’s Environment, Communication and Arts Committee on the Commonwealth Radioactive Waste Management (Repeal and Consequential Amendment) Bill states their perspective of the situation:
“… only the traditional Aboriginal owners, being the Ngapa group associated with the Lauder families, were empowered under the Act and under Aboriginal tradition to consent to the repository. Conversely persons from other groups are not entitled under the legislative scheme or under Aboriginal tradition to prevent traditional Aboriginal owners from utilising the land as they see fit.” (NLC 2008:12)
“Ngapa” is a term for water and rain, and it is used in connection with a Dreaming for part of the country.
It is a curious thing, in relation to the strong NLC claims being made to Aboriginal tradition, that a major rally is presently being organised for Tennant Creek on May 8 2011 by some senior indigenous people opposing this use of land at Muckaty – and some of these people, at least, have rights in land at Muckaty and are also traditional Aboriginal owners for land at Muckaty.
If the Northern Land Council is to be believed, these indigenous people don’t know their own traditions!
But the reality is that the Northern Land Council is wrong. They have got “Aboriginal tradition” completely back-to-front. They have accepted a non-indigenous view of First Peoples realities which transforms indigenous sovereignty of the majority into property rights of a few.
We look forward with interest to see what message comes out of the rally in Tennant Creek on Sunday 8 May.
Revolutionary step towards indigenous sovereignty? thewire
Produced by Ellen-Maree Elliot
The debate about Indigenous sovereignty has raged for decades. It’s taken a new turn as an Aboriginal leader prepares to launch an application to the International Court of Justice. Interviewed in this story: Michael Andersen, leader of the Euahlayi people; Don Alton, Australian National University; Craig Jones, Native Title and Indigenous affairs commentator; Bridget Lewis, Queensland University of Technology.
