Legal_Systems_Australia

The term indigenous peoples have a variety of references including first nations, nations and aboriginals. Indigenous peoples are ‘people, communities and nations who claim a historical continuity and cultural affinity with society’s endemics to their original territories that develop prior to exposure to the larger connected civilisation associated with western culture. During the nineteenth century whilst colonisation was taking place throughout the world, indigenous people found it tough to maintain their sense of self-determination, land rights, and sovereignty. This was due to the laws and legal systems put into place, both domestically and internationally. These legal ramifications made it difficult for indigenous people to resurge and regain their sovereignty and land rights. Self determination is defined by the ICJ as ‘the need to pay regard to the freely expressed will of people’. It embodies the right for all people to determine their own economic, social and cultural development and is a fundamental principle in international law. It has also been recognised in other international and regional human rights instruments such as Helsinki Final Act 1972 and Article 20 of the African Charter of Human and Peoples Rights. Self determination most often does NOT imply succession from the state. During colonisation sovereignty was severed for indigenous people. Sovereignty is the ability of peoples to have a nation state. It is a continual issue as it requires a nation to surrender its own sovereignty over indigenous peoples and their land. Indigenous peoples that have achieved sovereignty include the Inuit peoples (Canada) and the Nunavut peoples. Cultural integrity involves the occupation of ancestral lands, passing on of culture, religion, tribal systems and language. It is constantly developing from the historical continuity that particular indigenous peoples have with their land. It includes the right the right to practise and preserve cultural traditions (sacred sites). For example the Inuit people of Canada maintain their traditional way of life, however they use modern snowmobiles for hunting. *climate change A nation state can be recognised in the UN charter and the UN Declaration on the Granting of Independents to Colonial Countries and Peoples (1960). This declaration states fundamental rights are denied if peoples are subject to alien domination and exploitation. People cannot freely determine their economic and cultural development without self-determination. Many nations are unwilling to recognise indigenous peoples as a separate nation state because of the divisiveness and historic debt that giving them self-determination and sovereignty amongst their people would bring. A nation state is the largest impediment to international law making. Sovereignty refers to a state having supreme law making power. In today’s modern society the people and their nation state hold sovereignty. The people within society may become aware of their governments inadequacies through the power of mass communication, technology and media. Indigenous people are currently fighting for the recognition of land as more than just attainment of native title. This recognition can bring autonomy and sovereignty to achieve justice for indigenous people. Nation states are independent on each other for trade, aid and sharing of information. However, they need to work together to provide security, economic development and reduce inequality. Through intergovernmental workshops and world, states need to work together in achieving and improving the rights of indigenous peoples. International law depends on the acceptance and co-operation of states. International law is constantly developing as more states chose to recognise their indigenous peoples. Every state has chosen different ways to deal with their indigenous peoples. This makes it difficult to achieve Equality of Treatment. To achieve access to rights and equality, indigenous peoples have access to the instruments; ILO, Expert Mechanism, IWGIA and the Permanent Forum. Sovereignty is a major impediment in the equality of international law in relation to indigenous people and their nation state. The reason behind this is that particular nation states choose not to follow UN agreements. In turn the indigenous people of these nation states may suffer hardship, discrimination and human rights violations. The ICC has been a useful instrument in gain equality as individuals know they can face serious charges for crimes against humanity and genocide. National governments are a major obstacle in accepting indigenous peoples and international agreements. Their role is obligatory once an agreement has been ratified. States therefore are the vehicles used to implement international agreements. However, this may be ineffective in achieving justice and equality as states and parliaments may slow down the domestic legislation giving it the possibility to not meet the requirements of the original international agreement. Intergovernal organisations are established by governments through treaties. Regional and intergovernmental organisations have limited power in regards to indigenous peoples, as a nation state sees these issues purely as domestic issues. For example the European Union used diplomatic pressure to shed light on the issues faced by the indigenous people in Botswana. Unlike NGO’s, RIO’s have diplomatic advantages with their member nations. In august 2008, the forum suspension of Fiji if a general election was not committed to by March 2009. On May 2nd, 2009 Fiji was suspended indefinitely from participation in the Forum with immediate effect. The UN convention on the Elimination of all forms of Racial Discrimination (CERD) made it clear to Fiji that reports were sue every 2 years. From 2006-present, Fiji has been under the unelected rule of a military dictatorship. This instability adds to the problem of reporting to CERD. Australia, as a neighbour and a member of the pacific islands forum has sent peace keeping forces on a number of occasions to instil stability in the region. Since the 1967 referendum Australia as a nation state has had the power to make laws exclusively in regards to the ATSI people. From the 1967 referendum Australia has put into place several amendments and acts in relation to the equality, enforceability, protection and recognition of individual rights in relation to the effectiveness of the law in regards to ATSI people. An example of which include the Native Title Act 1993. The native title act allowed ATSI’s to claim land according to the mabo criteria, which came about after the regularised applications of the Mabo High Court Decision 1992. Other acts put into place by the federal government include the Racial Discrimination Act 1975 (CWLTH) and the Anti-Discrimination Act 1977. As of 2009, Australia became a part of DRIP. *DRIP Australia as a federal nation state has used its exclusive powers to signify and ratify major human rights instruments such as UDHR, ICCPR, and ICESRC. The federal government has introduced NT Intervention Legislation, measures that include seven different bills and amendments from 2007-2008. This $587 million package came into place after the passage of the northern territory national emergency response act 2007 by the Australian parliament, august 2007. This has come under criticism because in order to implement this act the suspension of the racial discrimination act was required. This suspension allowed the government to force communities to sign over control of aboriginal land, prohibit alcohol consumption, and control spending patterns through income management. The international covenant on civil and political rights (ICCPR) was adopted by the UN general assembly in 1966. It is based around the Universal Declaration of Human Rights (UDHR). The international Covenant on Economic, Social and Cultural Rights (ICESRC) works to promote and protect a wide range of economic, social and cultural rights. Australia has adopted these particular declarations as they work on the equality, enforceability protection and recognitions of the individual ATSI people’s rights.