The Rights of Indigenous Peoples

In 2007 the United Nations adopted The Declaration on the Rights of Indigenous Peoples.

The species known as homo sapiens evolved somewhere in middle Africa and dispersed around the planet. A good description of the current best theories of the global migration is provided by the Bradshaw Foundation. This highlights how various climatic events resulted in the routes which had been used being cut off and hence how groups developed separately. The first big event was the eruption of Mt Toba about 74,000 years ago eliminating the population in the India sub-continent and cutting off the population in South East Asia. Then during the last Ice Age about 20,000 years ago the American population that had crossed what is now the Bearing Straight was cut off.

History also records that across the planet there were very active trading systems over all of the last two millenia, over many different routes. These trading systems were regularly disrupted by various actions includng wars and conquests, but also natural events (such as the elimination of Pompeii which had been a important trading hub).

The descrption from the Bradshaw Foundation doesn't go as far as including the Austronesian migration through the Pacific Islands (the subject of a really great recent show at the National Museuem) and certainly doesn't cover the other mass migrations such as the Chinese diaspora through East Asia or the Slavic diaspora or indeed the various diaspora's including the one from which the term is derived in the Levant.

This results in seriuos difficulty in most of the world of genuinely identifying who are "indigenous" people. In Sri Lanka both the Ceylonese and Tamils are migrants from India, in the Balkans the racial mix is simply extraordinary, in Israel/Palestine both nationalities are migrants from the East, in the UK even the Celts are migrants from Northern Europe. This is componded by the fact that nowhere where nationalities (for the sake of discussion, language groups) share the same land mass have they maintained a consistent border resulting in large areas of co-mingled nationalities.

Further, while much mass migration has followed conquest, a great deal of mass migration has resulted from peoples who are fleeing either repessive regimes, invaders of their own lands or natural disasters. The more recent arrivals are not necessarily people whose intent was disruption. As an example, there was a surge in emigration from Germany to the United States after the failure of the liberal revolution in 1848.

It is understandable that there are peoples who feel "dispossesed" of their land. The ultimate question is how far back does one go in determining who are the "real" indigenous people. That is a core feature in the conflict in the Levant. In other areas of law there are very clear statutes of limitations, there are even under British Law ways that private land can be deemed to become a right of way if it can be demonstrated that it has been continuously used as such, even though each of those initial uses were technically trespass.

In the Australian case, the native title recognition only extended to land that had as yet not been "alienated" from native title, and for which the traditional owners could demonstrate a continuous connection.

The UN declaration includes many allusions to the concept of "national self-determination". This dangerous concept has had three main lives in global affairs. The first was in the national revolutions of 1848. While much of this activity was focussed on building "nation states" out of cultural/linguistic groupings such as the bringing together of principalities of Italy and Germany, or the attempts to separate out large ethnic groups from empires, such as the Magyars forming Hungary from Austria, they were as much liberal revolutions as national, the goals were more an end to autocracy than the need for a nation.

National self-determination was used as a rallying cry after the First World War as the basis for the victors dismembering the empires of the losers. Hence a plethora of states was created out of the fragmentation of the German, Austro-Hungarian and Ottoman empires, and their foreign holdings (e.g. Papua) were often transferred as protectorates rather than as colonies.

However that partition only reflected the weakness referred to above with regard to disputed territory. The Second World War had many real causes, but symptomatic of these was the German ambition to reconquer lost territory and extend its own image (Greater Germany as opposed to Little Germany in the language of AJP Taylor's The Course of German History).

Following that War the USA again raised national self-determination as a principle of settlement, and a wave of activity followed - with the dissolution of the European empires in Asia and some in the Middle East and less in Africa. (In reality the Asian case was more a matter of the Europeans being unable to re-establish the control they had lost in the war).

But again these moves resulted in the vexed question of exactly what constitutes "national" boundaries. The partition of India and Pakistan has left a record of war and conflict for half a century over disputed territories like Kashmir.

Perhaps it is time that we got over the idea of the rightsof indigenous peoples and recognised instead that there are three sets of rights that are being conflated and should be dealt with separately; the right to cultural and religious diversity; the property right in land; and the right to be free of autarchy.

The first of these rights necessitates an acnowledgement of the separation of "church" and state, and the complete rejection of theocracies. It includes the right to pursue cultural practices so long as those practices themselves do not infringe the higher level "basic human rights" - as a consequence practices that entail bodily mutilation of minors other than on established health grounds (so circumcission might survive - but the way it is conducted might need to change) would be illegal without infringing the cultural right, teaching the traditional beliefs would not be outlawed so long as that did not also forbid the teaching of the non traditional beliefs that would allow the child to prosper in the modern world.

The property right in land needs to be defended. More importantly the existence of shared title as occured in the Mabo judgement needs to be respected. This does not mean that States can't move to the idea of individual title, as there are good economic arguments and evidence that this leads to more efficient utilisation, just that anyone dispossesd of their common title is due compensation. However, where that act has been in the past it is important that there be recognised some statute of limitation, and a timescale of a generation (20-25 years) seems appropriate.

Finally there is the right to be free of autarchy. I will write later (as I may have already) that simply displacing dictators will not result in functioning democracy. Citizens value first security and will surrender to a strong central power if they believe that is what the power will deliver. The biggest crime of autarchy is the exercise of "arbitrary power" rather than not having the vote. Hence the first step is the establishment of the concept of the rule of law.

These are the essential rights that get confused in creating the rights of indigenous peoples. The Australia government has erred in acepting the declaration and needs to instead move more forcefully for the recognition of the threefold rights that obviate the need for such a dangerous concept as rights of indigenous people.

Note: In all the discussion of anthropogenic climate change we seem to forget to discuss the potential impact of sudden massive change induced by natural phenomena. The megavolcano Mt Toba of 74,000 years ago could be repeated, with some suggestion it could be in the same region in about 2012. While it might be impossible to do much for the people that would be buried by the pyroclastic cloud we could at the very least think through what the rest of the response neds to look like - most impotant of all is likely to be how to keep world trade functioning.