: Indigenous Peoples’ Status in the International Legal System

Indigenous Peoples’ Status in the International Legal System

Harry Hobbs

Indigenous-Peoples-Status-in-the-International-Legal-SystemMattias Åhrén; OUP, 2016; 288 pages; £70 (hardback)

Constitutional recognition of Aboriginal and Torres Strait Islander peoples has been on the political agenda since 2010. Despite the various reports by Parliamentary and expert bodies, recognition in state constitutions and by the Commonwealth Parliament, and considerable public support, constitutional change appears distant. In December 2015 another body, the Referendum Council, was established to ‘advise … on progress and next steps towards a referendum’. Once tentatively scheduled for May 2017, that vote is now unlikely to occur before 2018. No government has committed to a specific proposal and debate still rages on the precise content and form of recognition.

Mattias Åhrén’s exceptional new book on the status of indigenous peoples under international law does not refer to Australia’s haphazard and belated approach to recognition, or our stalled reconciliation process, but it does provide an illuminating, albeit sobering, reality check on the conceptual limits of non-Indigenous Australians. Debate over constitutional recognition, hemmed in, as it is, by both constitutional conservatives and the difficulties involved in threading the s 128 needle, occurs almost entirely in the absence of developments in international law. As Åhrén ably explains, a paradigm shift within international law has transformed a legal construct created to legitimate colonisation into one of indigenous peoples’ closest allies (pp 119, 232). Closer examination of the rights of indigenous peoples under international law lays bare the deficiencies in current debate on constitutional change.

Recognition of indigenous peoples as peoples for the purposes of international law means that Aboriginal and Torres Strait Islanders enjoy the right to self-determination. This right does not necessarily extend to a right to secession, but it does mean that Indigenous Australians have the right to maintain and develop their distinct societies side by side with non-Indigenous Australians (p 86). It is true that this will – not may – entail a substantial transfer of jurisdiction from Australian state institutions to indigenous decision-making bodies. It is also true that this will ‘fundamentally change the political map of states that host indigenous peoples’, as indigenous and non-indigenous peoples will share jurisdiction over and within the state (p 223). This is a right of Aboriginal and Torres Strait Islander peoples under international law, but it is almost unthinkable in the current Australian political environment, not to mention the foreseeable future.

Indeed, in stark contrast, ever since the abolition of ATSIC, ‘self-determination’ has been missing from the Australian polity’s lexicon. The situation is not improving. In June 2016, in the lead-up to the federal election, over 50 indigenous organisations signed the ‘Redfern Statement’ calling on the government to recognise indigenous peoples’ right to self-determination. This latest attempt by indigenous Australia was apparently ignored by government. The only national indigenous representative body, the National Congress of Australia’s First Peoples’, faces an uncertain future as the government confirms it will cease funding, and it is forced to shed staff.

Åhrén acknowledges that the scope of indigenous peoples’ right to self-determination has not yet been fully explored. Drawing on a wealth of international legal materials, however, he suggests a likely approach. While the precise powers of any indigenous decision-making body must be worked out via consultation with the state, international law demands that such arrangements allow indigenous peoples to genuinely influence the outcome of decision-making processes of relevance to them (pp 133–143). Crucially, this is more than consultation. It is decision-making power, reflective of a material right.

Indigenous Peoples’ Status in the International Legal System is divided into three parts. Part I explores classical international legal theory and political philosophy that underlies early treatment of indigenous peoples. Åhrén traces a distinct shift from the League of Nations era, which was receptive to the position of ethno-political minorities, to the post-World War II period where political liberalism’s focus on formal equality offered little for those differently situated. Part II examines the legal status of indigenous people under contemporary international law, teasing out the content and scope of the right to self-determination. Part III analyses in detail how a shift in understanding equality (from formal to substantive) dramatically shifted international law’s understanding of indigenous peoples’ rights to property, including over land and natural resources. A final chapter summaries the main arguments of the book. In a short first Chapter, Åhrén situates his work within a larger body concerning international law, the rights of indigenous peoples, and political philosophy. This book has earned its place alongside this corpus. Each member of the federal Parliament would do well to read it.

HARRY HOBBS is a PhD Candidate at UNSW Faculty of Law, 
a Lionel Murphy Endowment Postgraduate Scholar, and a member of the NSW Editorial Committee.

(2016) 41(4) AltLJ 293
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