Much law, scarce justice (Part 1)
Part Thirty-one of a history of European occupation, rule, and brutal imperialism of Indigenous Australia, by Dr George Venturini.
Much law, scarce justice
On the frontispiece of the foundation building of the University of Queensland there is sculpted a maxim. It reads: Juris præcepta sunt hæc: honeste vivere, neminem laedere, suum cuique tribuere.
It comes from the Corpus Iuris Civilis – Body of Civil Law, (Institutes, Book 1, title 1). The Corpus is a compendium of Roman law, issued between 529 and 534 c.e. by the Byzantine emperor Justinian I. It forms the ultimate basis of the civil law of most European jurisdictions.
The maxim means: “These are the precepts of the Law: to live honestly, to injure no one, and to give to each one that which belongs to her/him.”
Not many students may ask about it, most likely many teachers could not help, even fewer local as well as national politicians would care about the meaning. It is there, incongruous and most likely un-noticed.
Englanders would not know what to do with it, although they crave the ‘distinctive’ yet meaningless appellation from Oxford: Doctor of Civil Law – or the equivalent from Cambridge.
Indigenous and Torres Strait Islander People, the oldest civilisation on Earth, have no need for such ‘masks’, To place their position before the entire world they have their chart.
On 13 September 2007 the General Assembly of the United Nations adopted the Declaration on the Rights of Indigenous Peoples. 144 members voted in favour, 4 voted against: Australia, Canada, New Zealand and the United States) and there were 11 abstentions: Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine.
The Declaration sets out the individual and collective rights of Indigenous peoples, as well as their rights to culture, identity, language, employment, health, education and other issues. It also “emphasizes the rights of indigenous peoples to maintain and strengthen their own institutions, cultures and traditions, and to pursue their development in keeping with their own needs and aspirations.” It “prohibits discrimination against indigenous peoples”, and it “promotes their full and effective participation in all matters that concern them and their right to remain distinct and to pursue their own visions of economic and social development.” The goal of the Declaration is to encourage countries to work alongside Indigenous Peoples to solve global issues, like development, multicultural democracy and decentralisation. According to Article 31, there is a major emphasis that the Indigenous Peoples will be able to protect their cultural heritage and other aspects of their culture and tradition, which is extremely important in preserving their heritage.
The Declaration is structured as a United Nations resolution, with 23 preambular clauses and 46 articles. Articles 1 to 40 concern particular individual and collective rights of Indigenous peoples; many of them include state obligations to protect or fulfil those rights. Article 31 concerns the right to protect cultural heritage as well as manifestations of their cultures including human and genetic resources.
Articles 41 and 42 concern the role of the United Nations. Articles 43 to 45 indicate that the rights in the Declaration apply without distinction to Indigenous men and women, and that the rights in the Declaration are “the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world,” and do not in any way limit greater rights. Article 46 discusses the Declaration’s consistency with other internationally agreed goals, and the framework for interpreting the rights declared within it.
The opening and Article 2 of the Declaration provide that “indigenous peoples are equal to all other peoples,” guaranteeing them the right of existence, of living free of discrimination, and entitling them as peoples to self-determination under international law.
In Art. 1 the Declaration proclaims that “Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law.”
Interestingly, the Universal Declaration of Human Rights was the common effort of Mrs. Eleanor Roosevelt and Dr Herbert Vere Evatt, Q.C. K.St.J., commonly referred to in Australia as Bert Evatt, and often as ‘Doc’ Evatt. The distinguished jurist was President of the United Nations General Assembly from 1948 to 1949.
Art. 2 guarantees that “Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity.”
Art. 3 recognises the Indigenous Peoples’ “right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
In the exercise of that right, Indigenous Peoples “have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.” (Art. 4)
Furthermore, “Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.” (Art.5)
Every indigenous individual has the right to a nationality. (Art. 6)
Further, “Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person. … the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.” (Art. 7.1)
By the Declaration, “Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.” And the “States shall provide effective mechanisms for prevention of, and redress for: (a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities; (b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources; (c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights; (d) Any form of forced assimilation or integration; (e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them.” (Art. 8)
Article 9 provides that “Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right.”
Most importantly, according to Art. 10, “Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.”
Furthermore, by “Article 11 1. Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.” And “2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.”
Indigenous Peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains. 2. States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned. (Art. 12 1 and 2)
“Article 13 1. Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons. 2. States shall take effective measures to ensure that this right is protected and also to ensure that indigenous peoples can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means.”
By Art.14, “1. Indigenous peoples have the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning. 2. Indigenous individuals, particularly children, have the right to all levels and forms of education of the State without discrimination. 3. States shall, in conjunction with indigenous peoples, take effective measures, in order for indigenous individuals, particularly children, including those living outside their communities, to have access, when possible, to an education in their own culture and provided in their own language.”
“Article 15 1. Indigenous peoples have the right to the dignity and diversity of their cultures, traditions, histories and aspirations which shall be appropriately reflected in education and public information. 2. States shall take effective measures, in consultation and cooperation with the indigenous peoples concerned, to combat prejudice and eliminate discrimination and to promote tolerance, understanding and good relations among indigenous peoples and all other segments of society.
Article 16 1. Indigenous peoples have the right to establish their own media in their own languages and to have access to all forms of non-indigenous media without discrimination. 2. States shall take effective measures to ensure that State-owned media duly reflect indigenous cultural diversity. States, without prejudice to ensuring full freedom of expression, should encourage privately owned media to adequately reflect indigenous cultural diversity.
Article 17 1. Indigenous individuals and peoples have the right to enjoy fully all rights established under applicable international and domestic labour law. 2. States shall in consultation and cooperation with indigenous peoples take specific measures to protect indigenous children from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development, taking into account their special vulnerability and the importance of education for their empowerment. 3. Indigenous individuals have the right not to be subjected to any discriminatory conditions of labour and, inter alia, employment or salary.”’
There is room for a defence of the proposed, and so ignominiously rejected, ‘Voice to Parliament’ in the following
“Article 18 Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision- making institutions.
Article 19 States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”
In furtherance of their politico-social aspirations, Arts. 20 and 21 provide that
“1. Indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities. 2. Indigenous peoples deprived of their means of subsistence and development are entitled to just and fair redress.
Article 21 1. Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including, inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitation, health and social security. 2. States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their economic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities.”
Particular attention shall be paid to “the rights and special needs of Indigenous elders, women, youth, children and persons with disabilities in the implementation of the Declaration. 2. States shall take measures, in conjunction with Indigenous peoples, to ensure that Indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.” (Art. 22 1 and 2)
By Art. 23 “Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, Indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.”
“Article 24 1. Indigenous peoples have the right to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals and minerals. Indigenous individuals also have the right to access, without any discrimination, to all social and health services. 2. Indigenous individuals have an equal right to the enjoyment of the highest attainable standard of physical and mental health. States shall take the necessary steps with a view to achieving progressively the full realization of this right.”
Pursuant to Art. 25, “Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.”
Continued Monday with: Much law, scarce justice (Part 2)
Previous instalment: Government’s institutional brutality (Part 5)
Dr Venturino Giorgio (George) Venturini, formerly an avvocato at the Court of Appeal of Bologna, devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. He may be reach at George.Venturini@bigpond.com.au.
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The countries that have gained most from displacement of their Indigenous peoples are the four that gained most from that process: Australia, New Zealand, Canada and the USA. Also in common was that all of these countries were British colonies