Themes and Challenges

• The impact of state sovereignty in encouraging cooperation and resolving conflict in regard
to indigenous peoples.
• Issues of compliance and non-compliance.
• Laws relating to indigenous peoples as a reflection of changing values and ethical standards.
• The role of law reform in recognizing the rights of indigenous peoples.
• The effectiveness of legal and non-legal responses in achieving justice for indigenous
peoples.

Syllabus Dot Points

1. Nature of the law and indigenous peoples.

2. Responses to indigenous peoples.
3. Contemporary issues concerning indigenous peoples.

Effectiveness Criteria

• Application of the rule of law

• Enforceability
• Protection of individual rights
• Accessibility
• Meeting society’s needs
• Resource efficiency
• Responsiveness
• Has justice been achieved? (Equality, fairness, access)
 Nature of the Law and Indigenous Peoples
- The diversity of indigenous peoples means there is no official definition of the term
adopted by the UN.
- It is based on self-identification of indigenous peoples.
- Historical continuity with a string link to territories and surrounding natural resources.
- Distinct social, economic or political systems; language, culture, and beliefs.
- Form non-dominant groups of society.
- Resolve to maintain and reproduce their ancestral environment and systems as distinctive
peoples and communities.

Loss of Rights
- Indigenous people belong to the most marginalized and vulnerable groups of people in
the world – not only physical resources are taken from them, but also cultural and
intellectual property.
- Decision making is not made by indigenous peoples but by governments and corporations
wo have an economic interest.
- Industrialisation and modern farming practices have displaced indigenous peoples and
degraded the natural environment which they depend on.
- Culture and tradition of indigenous peoples has been undermined or destroyed by the
lifestyles, concepts, and values of the dominant societies.
- The United Nations Declaration on the Rights of Indigenous Peoples 2007 (UNDRIP) sets
out rights indigenous peoples are entitled to, setting a minimum standard of recognition
for these rights.
- Since UNDRIP, there has been little progress in legal recognition of these rights, making
international law ineffective.
- Rights of indigenous people include:
o The right to control and safeguard their traditional land and natural resources.
o The right to compensation for loss of property.
o The right to have their human rights respected.
o The right to preserve their culture, language, traditions, and lifestyles.
o The right to intellectual property.
o The right to self-determination.

Need for Legal Recognition

- Indigenous peoples are usually dominated by other societies, which leads to a loss of
power.
- Legal recognition ensures a formal acknowledgement of the rights of indigenous peoples.
- Sovereignty of IP isn’t recognised internationally as they are not eligible to be members of
the UN.
- In Australia, the government has accepted no general trust obligation to IP and no
obligation has been developed by courts.

Challenges in Determining their Future

- UNDRIP states indigenous peoples have the right to self-determination. This means they
have the right to determine their political status and freely pursue their economic, social,
and cultural development. It also states they have the right to autonomy in internal and
local affairs, as well as a means for financing these autonomous functions.
- The right to self-determination is important because it is essential for the effective
guarantee of individual human rights and also helps promote and strengthen those rights.
- Self-determination is having the right and opportunity to decide for oneself which is
important when considering how governments limit minorities.
 - International Labour Organisation (ILO) Convention 2009 recommends action but relies on
compliance by member nations. Failure of compliance can result in expulsion from the ILO,
UN sanctions, and world disapproval. Australia has not ratified it. It is based on the
recognition of indigenous and tribal peoples’ aspirations to exercise control over their own
institutions, ways of life, and economic development as well as to maintain and develop
their identities, languages, and religions. It basically makes it so anyone planning to utilise
indigenous land for economic purposes, like building a highway, must provide the people
living in that area full disclosure so they can understand the impacts and changes. This will
allow for the indigenous people to enter negotiations with all of the necessary information
and make an educated decision.

- Native Title Act 1993 (Cth)

International Court of Justice

- The court is the main judicial arm of the UN. The court has jurisdiction over two types of
matters: disputed cases and advisory opinions. Only recognised nations may directly bring
a dispute before the court. The jurisdiction of the court extends over any international
matters, including treaties. It is not legally binding and becomes part of customary
international law. However, its powers of enforcement are limited in that it must rely on
the willingness of the party nations to comply, or depend on pressure from the world or
the UN.
- Advisory opinions may be applied for by UN bodies to resolve matters of international law.
These decisions are not legally binding, but are considered as persuasive statements of
legal opinion.
 The ATSI Peoples
- UNDRIP 2007 sets global standards for Indigenous rights.
- ICCPR guarantees rights applicable to ATSI peoples such as non-discrimination.
- Human Rights Council (HRC) reviews Australia’s human rights record, including issues
affecting ATSI peoples, through the Universal Periodic Review (UPR).
- Special rapporteurs assess and report on indigenous rights conditions in Australia offering
recommendations.
- Australia reports to UN committees on treaty complains, addressing ATSI people’s rights.
- ICESCR addresses economic, social, and cultural rights, including the right to education
and health.
- Convention on the Elimination of All Forms of Racial Discrimination (CERD) requires states
to eliminate racial discrimination and promote understanding among all races which is
crucial for addressing systemic racism and ensuring equality for ATSI peoples.
- Mabo v Queensland [1992] taken on by the High Court and recognized the concept of
native title, overturning the doctrine of terra nullius and acknowledging ATSI peoples
traditional land rights. This decision established that Indigenous Australians have rights to
land based on their traditional laws and customs.
- The World Bank supports projects aimed at improving the social and economic conditions
of Indigenous peoples, including ATSI communities. It provides funding and technical
assistance for programs that promote economic development, health, and education.
- While not directly involved in Australian domestic issues, the EU can exert diplomatic
pressure and provide recommendations through international forums and partnerships
that impact Australia’s human rights practices.
- NGOs work to increase public awareness about ATSI peoples' human rights issues,
including land rights, social justice, and cultural preservation. They use media campaigns,
reports, and public speaking to highlight these issues.
- NGOs provide legal assistance and representation to ATSI individuals and communities in
cases related to discrimination, land claims, and other human rights violations. They help
navigate legal processes and advocate for fair outcomes.
- NGOs advocate for policy changes at local, state, and federal levels to improve the rights
and conditions of ATSI peoples. They engage in lobbying, prepare submissions to
government inquiries, and work with policymakers to shape legislation.
- Stolen generation
- Assimilation
Statistics
• ATSI are 3.3% of the population
• 47% of ATSI young people and children have hearing loss in the NT
• 19% of the ATSI disease burden is caused by mental health and substance abuse
• 1 in 3 ATSI youth experience high levels of psychological distress compared to 1 in 8 for
non ATSIs
• 30% of ATSI households are living below the poverty line
• Indigenous employment rates are twice as high as for non-indigenous and for youth 3
times as high
Statistics according to Australian Human Rights Commission
• 34% of ATSIs are home owners compared to 69% of non-ATSI population
• 86% of ATSI respondents reported speaking only English at home – 56% of remote ATSIs
recorded speaking an indigenous language at home whereas in urban areas only 1%
recorded this
• 60% of indigenous people recorded that they had an affinity with a clan, tribal or language
group
• Life expectancy is 17 years lower
 • ATSIs are 3 times more likely to be hospitalised for mental health reasons than other
Australians, 7% said they have no hope for the future
2006 Census
• ATSI people earned 62% of non-ATSI amounts on average
• Twice as likely to work part time
• 78% worked in low skilled labour while 60% of the non-ATSIs reported the same
• 23% of young ATSIs reported having completed year 12
• 5% have a bachelor degree or above compared with 22% of non-ATSIs

Case Study
Media Article: Stan Grant’s Racism Debate 2016
Prominent ATSI journalist articulated the attack on the treatment of ATSI’s in Australia up until the
present. Said “…an indigenous child is more likely to be locked up in prison than to finish high
school.” He refers to the arrests of ATSI people, claiming that police reform is necessary after 3
violent arrests of ATSI people in one month. E.g., an ATSI man who was arrested with a bag of
stolen pharmaceuticals was repeatedly tasered in the face and neck, he kept telling the police “I’m
not even fighting you.”
 The Yanomami Peoples
- European colonisation led to the displacement and marginalization of the Yanomami,
undermining their traditional rights and sovereignty.
- The sovereignty of nation-like states like Brazil and Venezuela often conflicts with the
Yanomami’s traditional land rights and self-determination as these states assert control
over territories rich in resources.
- Both Brazil and Venezuela have legal frameworks intended to protect Indigenous lands
and rights. For example, Brazil’s constitution of 1988 and the Statute of the Indigenous
recognize indigenous rights and land claims as well as Venezuela’s Constitution of 1999.
- In practice, land demarcation and protection can be slow and contested, particularly when
economic interests, such as mining, are involved.
- The Yanomami’s lands are often targeted for mining and deforestation leading to clashes
between state interests and indigenous rights. For instance, illegal gold mining in
Yanomami territories in Brazil has caused severe environmental and health impacts.
- Ensuring the protection of Yanomami lands often requires effective enforcement of laws
and policies, which can be challenging due to corruption or inadequate resources.
- Internationals organisations and NGOs often advocate for thew Yanomami’s rights,
pressuring states to enforce protections and address violations. This external pressure can
influence national policies and responses.
- The UN can play a role in highlighting human rights issues and providing
recommendations, though their impact depends on how states engage with these
recommendations.
- The Yanomami advocate for greater self-determination and control over their lands and
resources. This involves navigating the tension between national sovereignty and
indigenous autonomy.
- Reforms and stronger legal protections are necessary to address ongoing human rights
violations effectively.
- The UNDRIP 2007 sets global standards for indigenous rights and emphasizes the
Yanomami people’s right to self-determination and control over their lands and resources.
- In 2021, the special rapporteur on indigenous rights highlighted the struggles of the
Yanomami with illegal mining and encroachment on their lands, calling for greater
protection and enforcement of their rights.
- During Brazil’s universal Periodic Review (UPR) in 2017, several countries recommended
improving protections for indigenous peoples, including the Yanomami, particularly in
relation to lands rights and environmental conservation.
- Following the UPR, the HRC has issued recommendations for Brazil and Venezuela to
enhance protections for Indigenous peoples. Brazil was advised to address illegal mining
activities affecting indigenous territories.
- Survival International is an NGO which has brought attention to the plight of the
Yanomami and supported their advocacy efforts at international forums.
- The UN has funded initiatives aimed at improving the health and education of indigenous
peoples in Brazil. For examples, the UN’s development programs have supported projects
to mitigate the health impacts of illegal mining in Yanomami areas.
- The UN has facilitated discussions between Yanomami representatives and Brazilian
authorities to address human rights concerns, such as negotiating measures to prevent
encroachment on their lands and improve living conditions.
- CERD cited UNDRIP in its recommendations for Brazil to ensure the Yanomami’s land rights
and address mining violations.
- ICCPR guarantees the rights if indigenous peoples to enjoy their own culture and practice
their own religion. The UN HRC has reviewed Brazil’s adherence to ICCPR provisions,
 highlighting concerns about the environmental degradation on the Yanomami’s ability to
practice their culture.
- ICESCR supports efforts to improve the living conditions of the Yanomami due to the illegal
mining. The ICESCR recommended that Brazil take measures to improve health conditions
for indigenous communities.
- Convention on the Rights of the Child (CRD) protects the rights of indigenous children to
enjoy their culture and language which is vital as the children’s rights are threatened by
environmental degradation ad displacement.
- Case: Legal Actions against Illegal Mining:
- In 2019, Brazilian federal courts issued orders to halt illegal mining activities in
Yanomami territories. These legal actions were part of efforts to enforce
environmental laws and protect indigenous lands. The decision was crucial in
addressing the environmental and health impacts of illegal mining on Yanomami
communities.
- The World Bank has funded initiatives aimed at improving environmental and health
conditions in Yanomami territories by encouraging projects in the Amazon region to focus
on sustainable development.
- The NYT has featured opinion pieces and editorials on the plight of the Yanomami,
discussing their struggles with illegal mining and the need for international intervention.
These opinion pieces help shape public discourse and influence policy makers by framing
the Yanomami’s issues as urgent and deserving of immediate attention.
- State Environmental Agencies: In regions like the state of Roraima, where Yanomami
communities are located, state environmental agencies are responsible for enforcing
environmental regulations. These agencies have sometimes acted to curb illegal mining
activities and deforestation in Yanomami lands, although effectiveness varies. State-level
actions can contribute to protecting Yanomami lands, though challenges in coordination
and enforcement persist.
- The Deforestation Monitoring Program (PRODES): PRODES is a federal program that
monitors deforestation in the Amazon, including areas inhabited by the Yanomami. This
program provides data on deforestation rates and illegal activities, which can be used to
implement protective measures for Yanomami territories. Monitoring and data collection
help in addressing environmental degradation affecting Yanomami lands.

Case Study
Bill 191 2020
To allow mining and logging on IP’s demarcated land, covering 23% of the Amazon. If it becomes
an Act, IP’s will lose 23% of their land in the Amazon which will negatively affect their land and
cultural rights.

FUNAI
FUNAI’s task is to ensure that IP’s rights are respected as set out in the Brazilian constitution and
the Indian Statute. It is charged with protection Indigenous land from attack and misuse. FUNAI
has assisted IPs to retain access to their land, but it is unable to address the shift of government
attitude towards IPs in Brazil, e.g., Jair Bolsonaro running his successful campaign for President
while saying that no more land will be given to IPs in Brazil.

Marco Temporal
Environmental agency launched a court case in the Brazilian Supreme Court against the Xokleng
people which was then made a point that the ruling would apply to all IP’s. This case states that
IP’s only have rights to land under the Constitution if they had already made a claim before 1988.
It also claims the IP’s must be living traditionally on their land. The Xokleng were dispossessed
from much of their land by farming and were also hunted and shot by farmers and so will not be
protected by the Constitution.
Statistics
• 35 000 Yanomami
• 1980’s saw an influx of 40 000 illegal miners/loggers
• Imazon an NGO claim that the Yanomami Territory is in the top 10 for illegal activities on
their lands
• 2018-2019 UNICEF study found that IPs children in Brazil are: 4/5 short for their age, ½
underweight and 7/10 were anaemic
• Covid 19 has affected 10 000 people or about 1/3 with a 0.9% mortality rate
 West Papuans
- West Papua has a large land mass with less population, making it the ideal location for the
government to invest in primary industries like mining, forestry, agriculture, logging, and
fishing.
- West Papuans were forced to abandon their culture, language, customs, and all other
aspects of traditions that were passed down from generation to generation. Ity was a
cultural genocide that was imposed by the Indonesian government on Indigenous West
Papuans.
- Any cultural expressions were banned, their musicians killed or imprisoned, languages
banned from speaking in public, and other restrictions that were put in place for almost 50
years.
- Multi-National Corporations (MNCs) have been taking over vast areas of land and are
being backed by the military and police, causing major concern in WP along with
government sponsored transmigration programs to work in oil, logging, and mining.
- Indigenous people are being driven off their lands with no legal, political, economic or
social protection by the state to support themselves and their families.
- Indigenous WP has faced discrimination such as unequal access to healthcare, education,
and economic opportunities.
- Policies favoring non-Papuan migrants further contribute o marginalization.
- Al Jazeera News reports that the government of Indonesia created a transmigration
program that has been moving others from around the country to Indigenous lands,
forcing indigenous WP’s out of their homes.
- NGO Papuan Hope Language Institute has been working to document endangered
languages whilst others are advocating for the recognition of customary laws and
practices.
- Military operations that displace indigenous Papuans pave the way for extractive
industries and Indonesian settlers, which exacerbates instability and makes it difficult for
people to work and earn a living due to the constant threat of violence.
- UN human rights experts have been advocating for access to the area to investigate
reports of human rights violations. The Office of the High Commissioner on Human Rights
estimates that between 60,000 and 100,000 people have been internally displaced since
2018 Environmental degradation further exacerbates their struggles and negatively
impacts traditional livelihoods.
- The Indonesian government’s actions have increased military presence in the region and
led to the emergence of West Papuan movements such as the National Committee for
West Papua (KNPB) and the Free Papua Movement (FPM).
- The FPM advocates for independence, which has led to occasional violence and clashes
between pro-independence groups and the Indonesian military.
- Reports of human rights abuses by the Indonesian security forces have been persistent in
West Papua. Violence, extrajudicial killings, arbitrary arrests, and restrictions on freedom
of expression and assembly contribute to a climate of fear.
- Since the annexation of West Papua in the 1960’s, over 100,000 civilians have been killed
in the indigenous land.
- Indonesia’s government says Indonesian sovereignty in Papua is final, and has consistently
rejected claims that the Act of Free Choice didn’t meet international standards of self-
determination. The court in this case found that since the UN acknowledged the
referendum that any criticism of the referendum is also a criticism on the UN and that the
court has no jurisdiction to do so.
Statistics
- IP make up 1% of Indonesia’s population.
- Approximately 500,000 WP’s have been killed since the start of the conflict.
 - Indonesia is the world’s largest exporter of palm oil amounting to 5.7 billion dollars or 11%
of the country’s exports.
- Greenpeace Indonesia (NGO) found that 1/5 of palm oil is being farmed illegally on
indigenous land and that since 2000 1million hectares of forest land has been released for
plantations.
- 51.5% of the population of West Papuans are Melanesian indigenous peoples.
- WP has an illiteracy rate of 35% as of 2011.
Case Study
The Special Rapporteur on the Rights of Indigenous Peoples: West Papua Indigenous Peoples
Situation Under Indonesian Government 2013
Special rapporteurs are in charge of holding inquiries into violations and to intervene on specific
issues or urgent situations. They therefore play an important role in the protection of human
rights. They are independent, sit individually, and cannot be appointed for more than 6 years. In
2013, the report identified major issues for indigenous West Papuans such as their denied
independence and self-determination, WP suffering from violence, and physical and cultural
genocide. Experts say that there is evidence that slow motion genocide has been in progress over
the last 60 years of Indonesian occupation in West Papua.

Act of Free Choice 1969

This was a law to decide whether WP would remain a part of Indonesia in which 1022 Papuan
tribal representatives were asked to vote to either have WP become an independent state or join
Indonesia. However, they were pressured by the Indonesian government to join Indonesia and
there were allegations of torture and intimidation. The rest of West Papuans were not permitted
to vote. The participants only represented 1% of the population. The West Papuans believe they
lost their right to self-determination. The vote was not conducted fairly.

Jobs Creation Law

Allows for companies who have been illegally operating on IP land to apply for permission to farm
with no legal consequences.