Disconnection: Are Australia’s human rights obligations disconnected from the Arrernte, just as the Arrernte are disconnected from their country?

I was fortunate enough to visit Alice Springs on two occasions recently – May and November 2013. During both, I interacted with members of the Arrernte community, talking about their memories and lives, collecting firewood and playing with the children. Whilst I represented one half of their story photographically, this entry aims to further outline the intersection between international human rights law and the plight of the Arrente community.

While it is important to recognise the ability of human rights institutions to combat violations faced by indigenous populations, we are too seldom critical of the law’s operation. In one such critique, Kapur challenges the assumptions that “more law equals more equality and freedom, and that human rights is an optimistic and hopeful pursuit”.[1] Although liberal politicians continuously tout the ‘narrative of progress’, stories of inadequate housing and support in Alice Springs portray a contrary story.

For Kapur, the liberal tradition requires a cultural ‘other’, inferior and requiring attention; the Arrernte community constantly experiences neglect and racial disregard, many living without basic shelter.[2] One example of this is the Northern Territory Emergency Response (NTER), implemented with little regard for tribal and family differences. However, it must be noted that while Kapur cites statistical arguments revealing that more human rights violations have occurred in the 21st Century than any other, this critique fails to take into account that such violations are only measurable against benchmarks created in the 21st Century itself.[3]

Still, Kapur’s argument that the universality of liberalist human rights depends upon the “native’s ability to conform or be trained into civilisation” is apparent for the Arrernte community, who are still suffering a process of assimilation that began with initial encounters with ‘whitefellas’ approximately 120 years ago.[4] Countless language groups have been lost, and with a largely oral tradition, entire cultures have been erased.

As one means of reducing such discrimination, the Convention on the Elimination of All Forms of Racial Discrimination (CERD), provides an exhaustive list of prohibited grounds of discrimination in Article 1(1).[5] While Australia ratified the treaty in 1975 and introduced the Racial Discrimination Act (RDA), the Commonwealth Government has since authorised actions that appear to contradict its intentions at an international level. Accordingly, the CERD Committee has expressed concern with amendments to the Native Title Act 1998, which are seen to conflict with Australia’s obligations under CERD.[6]

Tragically, while our Government has become party to an important treaty, it fails to uphold its obligations, discriminating against its First Peoples. Worse still, the Committee cites the “lack of effective participation by indigenous communities” in decisions affecting their rights, made “without their informed consent”.[7] Reconvening in 2010, the Committee highlighted regrets; many previously raised concerns had not resulted in structural change and, in response, the Committee listed more recommendations.[8] My personal frustration with the situation is thus elucidated: what more can be done when recommendations are consistently ignored? While shaming the state or imposing sanctions are options, the economic strength of Australia as a powerful international state with even more powerful allies perhaps reduces both the viability and effectiveness of such impositions.

Furthermore, rather than merely ignoring recommendations, the Commonwealth Government has moved in the opposite direction; while the Committee has recommended funding increases for Aboriginal legal aid,[9] the Abbott Government has cut funding entirely;[10] while the Committee has recommended Australia emphasise the RDA over other discriminatory legislation[11], the Government has nearly repealed key provisions, now proposing amendments favouring libertarian freedoms over prohibiting offensive and insulting racial remarks.[12] It would thus appear that Australia has great lengths to go before its national policies are consistent with the General Assembly Resolution on the matter.[13] While this resolution is not binding, it does serve to guide the behaviour of state parties and members of the General Assembly, Australia included.

Globally, indigenous peoples are often the most impoverished, which makes it critical that Australia meets such obligations.[14] Eide connects their physical displacement with alien lifestyles. When a culture is fundamentally connected to its physical land, geographical displacement of its people is a catastrophic event that can flow on to serious criminal behaviour and systemic disadvantage. Certainly, the Arrernte face displacement under the guise of preventing alleged abuse still unproven.[15] Members of different families and tribes are moved into block housing without regard for historical implications; there is no concern for what this means against cultural dynamics established over thousands of years.

While the Committee on Economic, Social and Cultural Rights made meaningful suggestions for Australia regarding indigenous households, there is no mention of involving Elders, for example, in their formulation.[16] Although Eide’s reflection that the health of the indigenous individual is linked to the health of their society is accurate, greater emphasis on actual engagement is desperately needed before further ‘solutions’ are enacted.[17]

Under the weight of international obligations through ratified treaties, Australia is left with “considerable discretion”, as Mégret articulates, with respect to the means of implementation.[18] While arguments of sovereignty may justify this position, key areas of concern can and have been sidelined. Simply being a party to treaties may not be the only road to improving the situation of the Arrernte people. Obligations under international law carry a high degree of flexibility, which can often lead to the adoption of ambiguous and sometimes tokenistic measures in their discharge. While committees and treaty bodies seek to reconcile this with remarks, observations and reports, those most relevant have not engaged the individuals on the ground. In this sense, the committees themselves are alienated from the very subjects of such obligations.[19]

It is truly a bleak picture if both the Commonwealth Government and international committees advising it are disconnected from the actual experiences of the Arrernte community. It would appear that only real engagement in the form of consultation and communication could reignite the process of reconnection with the First People of this nation.

References: [1]Ratna Kapur, ‘Human Rights in the 21st Century: Take a Walk on the Dark Side’, (2006) 28 Sydney Law Review 665, 665. [2] Jon Altman, ‘No Corner Turned On Indigenous Housing’, Crikey (online), 15 June 2012<http://www.crikey.com.au/2012/06/15/no-corner-turned-on-indigenous-housing/>. [3]Above n 1, 669. [4]Based on the recollections and stories passed down through the Hayes family, Alice Springs. [5] Daniel Moeckli, ‘Equality and Non-Discrimination’, in D. Moeckli, S. Shah, & S. Sivakumaran (eds), International Human Rights Law (2nd ed, Oxford University Press, 2010) 163. [6] Office of the High Commissioner for Human Rights, Decision 2(54) on Australia: Australia, 54th sess, UN DocA/54/18,para.21(2) (18 March 1999) paras 6-7. [7]Ibid, at para 9. [8]Committee on the Elimination of Racial Discrimination, Concluding observations of the Committee on the Elimination of Racial Discrimination, 77th sess, UN Doc CERD/C/AUS/CO/15-17 (13 September 2010) para 9. [9]Ibid at para 19. [10] Human Rights Law Centre, Aboriginal legal services cuts will make justice more remote (2013) <http://hrlc.org.au/aboriginal-legal-service-cuts-will-make-justice-more-remote/>. [11]Above n 6, at para [10]. [12] Paul Farrel, ‘PM may soften stance on Racial Discrimination Act’ The Guardian (online), 7 March 2014 <http://www.theguardian.com/world/2014/mar/07/pm-may-soften-stance-on-racial-discrimination-act>. [13]United Nations Declaration on the Rights of Indigenous People, GA Res 61/295, UN GAOR, 61st sess, 107th plen mtg, Supp No 49, UN Doc A/RES/61/295 (13 September 2007). [14] Asbjørn Eide, ‘Adequate Standard of Living’ in D. Moeckli, S. Shah, & S. Sivakumaran (eds), International Human Rights Law (2nd ed, Oxford University Press, 2010) 208. [15]Utopia: An epic story of struggle and resistance, (Directed by John Pilger, Dartmouth Films, 2013). [16] Committee on Economic; Social and Cultural Rights, E/C.12US/Q/4, ‘List of Issues: Australia’, 11 June 2008 at para [23]. [17]Above, n 13 at p. 209 [18]Frédéric Mégret, ‘Nature of Obligations’ in D. Moeckli, S. Shah, & S. Sivakumaran (eds), International Human Rights Law (2nd ed, Oxford University Press, 2010) 101. [19]Ibid, 102.

NB:

The above words were written by Shaan R. Ali as an assessment ('Reflective Essay') submitted to the University of Melbourne Law School for the subject 'International Human Rights Law' as an elective of the Juris Doctor in Semester 1, 2014. The 1,000 word limit was strictly enforced and the piece had to reference at least 4 topics covered in the course.

The photographs were taken by Shaan R. Ali in and around Alice Springs, NT, Australia.