Indigenous Peoples and the Creation of an Inclusive International Legal System

January 14, 2004

Introduction

JOANNE BAUER: Welcome to the Carnegie Council. My name is Joanne Bauer and I’m the director of studies here and I also founded the Human Rights Initiative about ten years ago. The bulk of the work that we do is to produce a publication called Human Rights Dialogue, which is available for free download on the Council's Web site.

We’re currently in the midst of working on an issue on environmental rights, which has a great deal of overlap with our speaker today. And we also have an interest in pursuing cultural rights, which is a subject that is rather obscure to most people. The human rights community is becoming more and more conversant in human economic and social rights, as they have long been in civil and political rights, but cultural rights is still new territory.

Indigenous rights relate very closely to these two areas. Our guest, John Scott, focuses on a human rights-based approach to social justice for aboriginal and indigenous peoples. He has worked as a high school teacher, an aboriginal educational advisor, an indigenous policy officer, a university lecturer, and a senior manager at the Aboriginal and Torres Strait Islander Commission. He has a particular interest in biodiversity and the protection of traditional knowledge.

In 2001, he accepted a position as Indigenous Human Rights Officer with the UN Office of High Commissioner for Human Rights, where he was charged with establishing the Permanent Forum for Indigenous Peoples at the United Nations; in 2002, he was appointed as the first Indigenous Secretary to the Working Group on Indigenous Populations at the Twentieth Anniversary Session; and in 2003, he joined the United Nations Department of Social and Economic Affairs to establish the Secretariat for the Permanent Forum on Indigenous Issues, where he currently works.

Please join me in welcoming John Scott.

Remarks

JOHN SCOTT: Thank you.

I’ll start by telling you a little bit about myself. I’m a descendent of the aboriginal Idindji people through my father Jack Scott and his mother Maude Evans.

My grandmother and her eleven brothers and sisters were moved to a Catholic mission where my father was born. At the age of five, as was the custom in the mission days, the children were taken from their parents and put in a dormitory where they received a very basic education so they could be trained for either domestic labor or the jackeroos, which is like a cowboy.

At the age of ten my father was then sent out to be a drover, to bring the cattle down to southeast Queensland, where they were butchered and sent to market. He did that until he was old enough to run away and join the Navy and go to the Korean War, which probably seemed a better option for an aboriginal person than to stay in Australia at that time.

My grandmother and father were both born under the Aboriginal Protection Act. In the 1800s, the government of Australia believed that aboriginal people would in fact die out. Their numbers had dropped down probably from around a million on European settlement to about 200,000. The government was also concerned about the development of large groups of mixed-race people, which was a particular paranoia facing the world in the last hundred years.

Under the Aboriginal Protection Act, any aboriginal people who had not actually been "dispersed"—that is, people went into the area and shot and poisoned anyone who didn’t run away—were rounded up and put on church missions and reserves.

It wasn’t until the 1970s that many of these aboriginal missions were handed back to aboriginal control. Many people spent two or three generations interned in what was best described as a prison camp. You couldn’t leave without the permission of the chief protector, who was usually the local policeman. You could not hold a bank account. You could not be employed without permission. People were used as cheap labor. The women were sent out as domestic laborers to cattle properties all over the west, and the men were used as station hands.

I worked on “The Stolen Generations,” which was the national inquiry into the removal of aboriginal and Torres Strait Islander children from their families.

It was common practice that a young aboriginal woman from the age of fourteen would be sent out to cattle properties, where she would often be the only woman in an all-male environment. Needless to say, it was not long before the woman was pregnant. To save the embarrassment of the white station owners, she was sent back to the mission to have the baby. The baby was removed, put in a dormitory, and the woman was then sent off to another cattle property. So people spent their whole lives going in and out of missions as cheap labor, having their children removed, and their entire lives institutionalized.

It wasn’t until the 1950s and 1960s that aboriginal people could apply for an exemption from the Aboriginal Act. You could get an exemption, which my father did, because he married my mother. The exemption was granted as long as you agreed not to live as an aboriginal person, not to associate with your aboriginal family, and to take on Western ways.

The assimilation period, which followed the Protection Acts, continued from the 1930s through to the 1970s, when we had a change of government that brought a policy of self-determination.

Under the Assimilation Acts, it was expected that any indigenous Australians who remained would very quickly be absorbed into the rest of the population. Aboriginal people were not on the census until 1967, although Australia did count sheep and cattle before that. Now we are 420,000 out of a population of between 19 and 20 million. Part of the politics of being indigenous peoples, particularly in the developed world and Western countries, is that we’re often a very tiny percentage of the population.

When I was an aboriginal education advisor, we developed literacy materials for aboriginal children so that they could both value aboriginal English and learn to be literate in the lingua franca, which was standard Australian English. We tried to capture the language that aboriginal children were using in schools, because in the mission and reserve days culture was banned, language was banned, and people were in fact punished if they spoke aboriginal languages.

Worldwide, there are over 370 million indigenous peoples on all six inhabitable continents, in more than seventy countries. We represent over 5,000 distinct peoples and languages. Given that large parts of Asia, like China, do not recognize indigenous peoples, that Africa is still having the debate on who is indigenous, this is a vastly underrepresented figure. Many countries don’t collect statistics on indigenous peoples. One of the problems in lobbying for social justice strategies is that we don’t have global statistics to back it up, although individually we can see different case studies.

Many indigenous people suffered gross and systemic human rights violations, marginalization and war. Wherever there is migration, whether the indigenous people are moving themselves or other people are moving in, there seems to be conflict.

Indigenous peoples regard themselves as stewards and custodians of our traditional lands, guardians of our territories’ biodiversity and great proponents of sustainable development. Given our close ties with our local environment, which endows us with unique and profound knowledge systems, indigenous peoples don’t only come to the international community with problems; we come because we want to participate in the great current debates—on global warming, the environment and sustainable development.

Meanwhile, the international community began to slowly recognize that special measures were required to protect the rights of the world’s indigenous peoples. As far back as 1923, the visionary Cayuga Chief Deskaheh traveled to Geneva with the hope of addressing the League of Nations. He was intent on defending the rights of people to live on their own lands, under their own laws, and under their own faith. But, as Chief Deskaheh noted, his efforts were met with cruel indifference and he was not allowed to speak. The League of Nations ruled that they had no authority to look at a treaty concluded between the United States and his people.

Yet Chief Deskaheh traveled to the League of Nations as a representative of the Haudenosaunee. This group, which also covers the area that we are now on, is the oldest known League of Nations. The Haudenosaunee had a League of Nations of six nations when they went first in 1923 to address the League of Nations.

In 1925, we had a Maori spiritual leader, [Tahupotiki Wirenu Ratana], who also hoped to address the League of Nations on violations of the Treaty of Waitanga, which the British made with the Maori when New Zealand was first settled. Unfortunately, he was not allowed to address the League of Nations either.

Then again, in 1932, a group of aboriginal people in Sydney, Australia, met to discuss the need for aboriginal people in Australia to have a treaty. They traveled to England to meet with the Queen of England, who refused to meet with them.

When the British came to America, they had treaties with the indigenous people. When they went to New Zealand, they had treaties. When they got to Australia, they said, “It’s empty, we don’t need a treaty with anybody, because these people are so primitive that they can’t possibly have an understandable language of any form of land ownership, so we should just treat it as empty.” Australia was settled under the legal doctrine of Terra Nullius, that it was an empty land.

Captain Cook sailed up the east coast in December of 1770, and when he arrived at the very tip of Cape York on Possession Island, he planted the British flag and took possession of the entire continent in the name of King George.

Then, in 1778, the first fleet arrived. Free settlers didn’t come to Australia until between the 1820s and 1830s. From 1788 through to 1830 it was mainly a penal settlement for convicts. In those days, the greatest crime was poverty or being Irish, so most of those people were sent to Australia as political criminals or people who were victims of poverty.

In 1949, Chief Deskaheh’s people helped to build the United Nations in an area that they called Turtle Island. It was interesting that they were allowed to build a building that they weren’t allowed inside.

Then we have the birth of contemporary indigenous diplomacy. In 1977, delegations of over 150 indigenous leaders, including Chief Deskaheh’s people, gained access to the UN premises in Geneva to participate in a conference on discrimination against indigenous peoples. A number of recommendations came out of this conference.

On June 24, 1982, a Hopi interpreter and elder, Thomas Banyacya, entered the “house of Micah,” as they called it, to address the United Nations on the Second Session of Disarmament and to warn against impending nuclear holocaust.

In 1981, we commissioned a study by a person who is now famous to aboriginal people, Martinez Cobo. He knew that indigenous people were still developing our infrastructure to deal with the international community, so he purposely took almost ten years to complete the study to give indigenous people a chance to organize.

The Martinez Cobo study was finished in 1994. The United Nations accepted that indigenous populations were separate peoples and had been denied their rights and in other ways had been spurned; and that indigenous peoples need more than just protection against the loss of rights, but also promotion of our human rights.

Hence, in 1982 the Working Group on Indigenous Populations held its first meeting in Geneva. Its mandate was two-fold: (1) to protect the rights of indigenous peoples; and (2) to set standards relevant to indigenous peoples’ rights.

The Working Group has been an Institution for Indigenous People for twenty-three years now. It also became a training field for indigenous people.

During this period, indigenous people lobbied very strongly for a permanent body. In 1993, the World Conference on Human Rights in Vienna recognized the responsibility of all UN Member States to respect the human rights and fundamental freedoms of indigenous peoples, and recommended the consideration of a Permanent Forum.

In 1993, the International Year of the World’s Indigenous Peoples was launched as a way to raise awareness about indigenous peoples, and from 1995 to 2004, we have seen a strategy that we refer to as the Decade of the World’s Indigenous Peoples, which concludes this year.

What happened? The Working Group in 1991-1992 completed a Draft Declaration on the Rights of Indigenous Peoples, which it handed to the Commission on Human Rights, which briefly looked at the document and referred it to another technical working group to negotiate the language with states and indigenous peoples. This is the tenth year of the Working Group on the Draft Declaration of the Rights of Indigenous Peoples, and out of the forty-five articles two have been passed.

I was the report writer for a couple of years. It’s a very frustrating exercise for indigenous people who are asking for a second Decade for the World’s Indigenous Peoples. We shouldn’t automatically ask for a repeat of the previous decade, unless we’re convinced it was a good strategy which will provide us with some outcomes. If it means ten years more to agonize over the Draft Declaration, I would not support a second decade.

The Declaration on the Rights of Indigenous Peoples is regarded by indigenous peoples as the best articulation of the minimal standards of our human rights. What makes it different from other declarations is that it addresses collective rights which the international community and the international legal system are still coming to terms with.

Traditionally, the international legal system has been developed and influenced by Western legal systems, focused on the rights of the individual. We all believe in human rights, and particularly in individuals’ human rights. However, indigenous people were saying that this didn’t adequately protect us because in so many ways we share collective rights to different things: our identity; traditional knowledge; our resources, lands and biodiversity.

Indigenous people have lived in a particular area since time immemorial. Whether that is for American Indians 12,000 years, or whether it’s 60,000 years or 100,000 years for aboriginal Australians is irrelevant. The fact is that they were the first people there and they have lived there for many generations, and each generation collected an encyclopedic knowledge about that particular place, which was passed on to generation after generation. That becomes traditional knowledge which is owned collectively.

If an extended aboriginal family owns the knowledge about a particular plant, such as the saltbush plant in Western Australia, which was used traditionally as an antiviral medication, they believe that they own that knowledge as collective knowledge, and that if it is shared and commercialized, the benefits should go back to the whole community.

Interesting enough, a pharmaceutical company collected specimens of the plant, found that one of the chemicals in it was useful for HIV, and therefore took out a patent. The indigenous people lost their traditional knowledge, although they had known of its antiviral properties for thousands of years.

In the Convention on Biodiversity, there are a number of articles relevant to indigenous peoples. And we’re very active in the biodiversity forums and in the World Intellectual Property Organization (WIPO), to ensure that people understand the nature of traditional knowledge and develop effective ways of protecting it.

Interestingly enough, not all countries are in favor of collective rights, which they see as conflicting with individual rights. We indigenous peoples ourselves believe that they can stand side by side without having a negative impact on each other.

Countries such as the United Kingdom, the United States, Canada, Australia and New Zealand to a degree, certainly regard themselves as being the world’s policemen when it comes to individual human rights, and that’s not always a bad thing. However, they are also very actively arguing against collective rights because of an unfounded fear that they will somehow affect individual rights. We need to develop an international legal system that is representative of many different traditions, not just Western legal traditions.

Although China says it doesn’t have indigenous peoples, it does have ethnic minorities, and it is also interested in reforming the international legal system in terms of traditional knowledge, because they feel that Chinese traditional knowledge has been mercilessly exploited by the West. China, who doesn’t recognize indigenous people, actually shares a common interest in seeing traditional knowledge protected. Sometimes we find ourselves with strange bed partners.

The Draft Declaration is suspended at the moment and we face the very last year. As well as the Draft Declaration on the Rights of Indigenous Peoples, there is one international legal instrument, which is the International Labor Office’s (ILO) Convention 169, which is about indigenous and tribal peoples. In some ways, it’s a good document and suits the needs of some indigenous peoples.

Aboriginal people advised the Australian government not to sign it because we thought the standards were too low. An elder said to me once, “Do we need an international instrument that gives me the right to go and subsistence fish?” In some ways, aboriginal Australians regarded the ILO Convention as being too low to be of any benefit to people unless you were in a very dire situation. It also qualified the right of self-determination, which some indigenous people find offensive.

At the same time, there are indigenous people who support the law and encourage their governments to sign it and then make the best of using it. We don’t always stand in exactly the same place on every issue, and that’s part of the diversity—not just aboriginal Australians; we have our indigenous brothers and sisters from Latin America, Central America, Finland, Norway, Sweden, and Russia—the Sammi People, the Reindeer People, and we also have the Shore People from the far northeast of Russia.

When I first came to the Working Group in 1994, which became a capacity-building and training ground for my international work, I saw such a variety of people of all different colors, shapes and sizes, and colorful costumes; and some of them looked Western and some didn’t; some of them spoke one of the UN six official languages, some spoke none of them. I was impressed by the great diversity of indigenous peoples.

We shared a commonality on many issues, whether it was resisting assimilation, maintaining distinct identities, or lobbying for law reform for the recognition of collective rights. There was enough in common for us to work together on an international level work to make the world a better place for indigenous peoples.

The idea of the Permanent Forum on Indigenous Issues arose from the Working Group and the World Summit on Human Rights held in Vienna. Finally, the Economic and Social Council (ECOSOC) in 2000 passed a Resolution establishing the Forum, which is made up of sixteen independent experts appointed for a three-year period. Of these sixteen members, eight are appointed by governments. Four of the eight are indigenous, four are non-indigenous. The eight independent experts coming from the indigenous peoples are appointed by the President of ECOSAC.

We advertised a year beforehand throughout the indigenous world to announce that we were accepting nominations from indigenous organizations. In particular, we encouraged large national indigenous organizations to get together on a global regional basis to come up with regional candidates, which are then passed on to the President of ECOSAC.

The indigenous regions are the Pacific, which covers my country Australia, New Zealand, the Pacific islands and Hawaii. Then there are North America, which includes North America and Canada; Europe and the Arctic; the Former USSR; Africa; Asia; South America, which includes Central America and South America, and the Caribbean, which is one of our most populous areas of indigenous peoples.

With seven indigenous socio-geographic areas, the Indigenous Caucus decided to appoint the eighth member in a rotating seat to move through the three most-populated areas – Latin America for the first term; the second term will be Asia; and then the third will be Africa.

When the Permanent Forum was created, indigenous peoples said, “We want a broader mandate than just human rights, although everything we do comes from a human rights perspective.” They argued that the Permanent Forum should be given a broad mandate covering six areas: economic and social development, culture, the environment, education, health, and human rights.

The mandated areas have three strategies that the Forum works with:

  • To provide advice and recommendations on indigenous issues to ECOSAC as well as to programs, funds, and agencies of the UN and the Economic Council.

  • To raise awareness and promote the integration and coordination of activities relating to indigenous issues within the UN system, where there was a lack of coordination and long-term planning. There was good individual work going on in individual bodies, but the purpose of the Forum was to provide an umbrella, a blueprint, on how we can do things in a better way.

  • To prepare and disseminate information on indigenous issues. The Forum was established in 2000, and members appointed in 2001. The Secretariat for the Permanent Forum on Indigenous Issues was established on January 27, 2003.

With sixteen independent experts and no Secretariat, not much happens. The work has only really commenced with the Secretariat coming on-board.

The funding of the recommendations that come out of the Forum relies on the United Nations Voluntary Fund for the Permanent Forum on Indigenous Issues, which was established in August 2003. Although some countries have held off on donations in the first year because the Secretariat was understaffed, at the moment we have $170,000 from the Danish government, $160,000 in the pipeline from the World Bank, and more money to come. Because most of the recommendations of the Forum incur some costs, it can only be funded from voluntary donations.

For instance, one of the recommendations coming out of the first and second reports is the issue of the lack of global data available on the indigenous social situation. We will bring together forty experts, indigenous people and statisticians, to look at this vexing problem of data and the lack of disaggregated data on indigenous peoples.

Some countries do it quite well. In Australia, the Bureau of Statistics has a separate department these days and produces a separate report. Places like Canada do that as well.

In Australia, indigenous people weren’t included in the Census until 1967 when there was a Referendum and 99 percent of Australians voted in favor of aboriginal people being counted as “people.”

People didn’t have a history of participating in the political process, of voting, of being included in the Census. Many aboriginal people in my country today, although voting is compulsory, have still not registered to vote. They avoid the Census officers because if a man in a suit comes to the door from the government and asks, “Who lives here and what’s their relationship to you?” when you live in a large, indigenous extended family, where people come and go and move around according to the time of year and family obligations, sometimes that’s a very difficult question to answer.

However, we have implemented strategies to have indigenous people educate others about the Census to allay their fears.

Under our mandate, the Forum meets in New York or Geneva. We can meet in another country; however, that country has to invite us and pick up the extra costs.

The first three meetings have been held in New York because the independent experts wanted to make an impact at UN Headquarters to raise the level of awareness right at the very highest levels of the UN. This year’s meeting will be from May 10-21.

The theme of our 2003 meeting was Indigenous Children and Youth. We opened with a high-level panel and worked very closely with UNESCO. We capitalized on many other UN activities for children and youth. We also worked with the Committee on the Rights of the Child, which held a special day on September 19, 2003 to look specifically at the situation of indigenous children and youth. What came out of last year is an action plan on how to improve our work for indigenous children and youth.

This year’s session will take on the theme of Indigenous Women. I suspect that the theme for 2005 will be Traditional Knowledge and Indigenous Intellectual Property. There is much interest in this area and other work going on in the UN system.

Some people are vulnerable to multiple forms of discrimination, and housing particularly affects indigenous women more than anyone else. There is interesting work being done by UN Habitat, which will publish a report on “Indigenous Peoples and Housing.” They examine the double whammy that indigenous women cop when it comes to vulnerability with discrimination.

Questions and Answers

JOANNE BAUER: Could I start our question and answer session by asking you to tell us a bit more about your family?

JOHN SCOTT: I was born in Queensland in a small country town in 1958. My parents were married in New South Wales. They were married because my father had an exemption from the Aboriginal Exemption Act, because mixed-race marriages were not allowed. Australia had an unofficial white Australian policy until the 1970s, which meant that only white people could migrate there.

It wasn’t until 1975, with the passing of the Federal Racial Discrimination Act, that people were required to pay aboriginal people award wages. Until the 1980s, aboriginal people were paid less than others. There are still ongoing court cases to recover misappropriated aboriginal wages, right up until 1982 and 1983.

We lived 1,000 miles away from my mother’s people, who were brought up in the slums of Sydney. It’s probably funny for you to hear the word “slum” and the words “Sydney” and “Australia,” but Sydney also had its slum areas. Surrey Hills was a poor area where largely the Irish immigrants and people of Irish descent lived. People like my mother started work in a bookbinding factory at the age of fourteen.

We lived in my great-grandmother’s house. My Dad’s grandmother was a very stern old Scottish lady. I lived in a house both with my aboriginal family and with everybody else. Aboriginal people were very much extended family people. Before the invention of the pill, maybe we were all much more extended family. People had bigger families and didn’t move around so much.

We moved to a small country town when I was about four, with my aboriginal grandmother. My father traveled a lot. After he left the Navy, my Scottish grandmother said, “You should get a job in the police force.” It was mainly because he was always in trouble with the law, so her reasoning was that if he worked in the police force that would keep him out of trouble.

Because he had been brought up as a drover and a jackaroo, his job was to work with other aboriginal people to train the police horses and all the stunt riding at the yearly Royal Show. He also looked for people who stole sheep and cattle and did tracking. When I say “employed,” I use the word loosely. Their job was to clean the stables and to track lost sheep, cattle, children, people who had wandered off into the bush. Aboriginal people were famous for being able to track across country.

With my father away much of the time, it was my aboriginal grandmother and my white mother who brought me up. I have an understanding of what it means to be both a white and a black Australian. When I was growing up, my father didn’t want us to bring people to the house, because in Australia people thought there was something wrong with you if you had aboriginal blood in the family. It was regarded as a curse or something that you should hide, or it meant somehow you were less intelligent than everybody else. Even people like my grandmother, who was brought up on a mission, was brought up to believe that the darker you were the lower your intelligence, and that you shouldn’t associate with darker aboriginal people, that they were subhuman.

Even when my father left the Navy and went back to the little town we were brought up in, there was an aboriginal camp on the riverbank, and he was told that he could not associate with aboriginal people if he expected to live as a white person, free of the Aboriginal Act to marry my mother. So aboriginal people who did get an exemption did so at a great cost.

I was brought up in a very mixed-race family. I’m one of the lighter ones. My Mom is a blue-eyed blonde, she is of Irish and Scottish descent and her mom had red hair. I have one brother with red hair and a sister who’s dark with blonde hair.

In the 1970s, when I was a teen-ager, there was a renaissance in Australia for aboriginal people. No longer were we happy with the situation where we should be ashamed of who we were or what our background was. Aboriginal people in Australia started to revitalize their cultures. Maybe part of this was that the reserves and missions were handed back to aboriginal people from the 1970s onwards, so we wanted to get some control of our lives again.

I wasn’t brought up under the Act, I wasn’t raised on a mission or a reserve, but I do have relations who were brought up under those conditions. I also have aboriginal relations who have died in custody. The family had to argue with the police because they didn’t want them to record him as an aboriginal death, because at the time there was an inquiry into aboriginal deaths in custody. So it’s hard enough to grieve if you lose somebody, let alone being told you can’t say that they’re aboriginal because they’re too white. In the police opinion, they weren’t aboriginal because they didn’t look like it.

A Labour Government came to power in 1975 with a policy self-determination. It was the first time that we had ever been told that we could control our own lives. But if you keep people in detention for two or three generations and teach them to be totally dependent and then suddenly hand the community back and you say, “You’re free now, you can run it, and here’s the books, here’s how you apply for grants, here’s how you run programs,” and just walk away, there will be problems because people have learned to be welfare-dependent and have been disempowered.

We are still struggling, battling corruption, misappropriation, substance abuse, domestic violence—the same problems as everybody else, but probably in a more exaggerated way.

QUESTION: How do you view the mainstreaming of indigenous peoples?

JOHN SCOTT: The UN has very successfully mainstreamed gender equity in the last few years, and in some ways we use that as a model.

Because of the uniqueness of indigenous peoples and notions about collective rights and collectivity, many of the international instruments do not adequately provide protection. But we want to be included in everything, and part of mainstreaming means that all UN officers in their daily work consider people who are traditionally marginalized, whether that be women, ethnic minorities or indigenous peoples.

QUESTION: Could you speak more about collective rights? Indigenous people find themselves on land which has plants and trees that suddenly become highly desirable, and with the issue of patenting, the current laws don’t provide protection.

JOHN SCOTT: The WIPO has just renewed the mandate for their Inter-Governmental Committee on the Protection of Traditional Knowledge, so there’s always hope.

Let me give you a particular case study. We were talking about real estate earlier. Aboriginal people don’t consider that we own our traditional territory; we consider that the land owns us. We are not separate from the natural environment, but rather part of it, and by being part of it we enrich it.

Australia has sub-tropical rainforests, ninety percent of which it has managed to destroy in the past 200 years. However, the Cook Islander people are the traditional owners of a rich area of biodiversity with a mountain range, covered in jungle and rainforest, that comes down to the coast, and then there’s the Great Barrier Reef.

Anthropologists believe that aboriginal peoples may have been there for more than 100,000 years. For us, we’ve been there forever.

The Cook Islander people farm in small parts of the area. They burn particular areas, such as one particular side of the hill or mountain. Burning certain patches of rainforest increases the biodiversity.

There is a little marsupial animal that looks like a shrunken kangaroo, a cross between a rat and a kangaroo, called a betong. The betong lives in the wet tropics and eats the fungi and mushrooms that grow in areas that have been cleared for farming.

When the aboriginal people were removed and put on missions and the country grew back, the biodiversity dropped off because there were no longer grassy areas that brought these kangaroos in or allowed the betongs to find fungus, so these animals died off or they moved away.

I was working with an elder who was complaining that there was too much rainforest, because the area that they traditionally burnt off to create grassy slopes to bring in grass-grazing animals had been taken over by the national parks, and none of it was being burnt off. There has been a direct loss of the biodiversity because of mismanagement by the national parks.

So the national parks said, “Aboriginal people used to burn off every year, so we will burn off a whole side of this mountain range every year in August.” Aboriginal people had burnt off tiny areas. So traditional knowledge, even when it is picked up by somebody else, can be misused and do great damage.

Where we have lost traditional languages we have lost traditional knowledge and there has been a direct loss of biodiversity. There is a link between indigenous people, our languages, our knowledge, and all the animals that live around us.

This reinforces the point that we are not separate from the natural environment. The great mistake the Western world is making is to take yourselves out of the natural environment and to think that it can be controlled by modern technology and that that is somehow a sustainable thing to do.

The Australian government, for instance, has just finished mining in Nauru, an island to the northeast of Australia. Most of it was phosphate, bird guano that had built up over thousands of years. Eighty percent of the island is now mined. There is no room left for the people to live there.

The Australian government has said to these people, “Given that it was mined by an Australian mining company, maybe you can come to Australia.” So that’s the government solution: you can go into an island, mine 80 percent of it until it is no longer fit for human habitation, and then just move the people somewhere else.

Indigenous people believe we have something to contribute to the global debate on sustainable development. The whole world needs to listen to us to ensure a collective future.

The term “environmental genocide” has come up recently. What happens in the South Pacific through global warming when all these island states go under? What happens to their people? What happens to the money that they owe the rest of the world?

QUESTION: Could you speak about some of the dilemmas of compensation, restitution of property and reparations?

JOHN SCOTT: I would like us to reconsider reparations, because when the word “reparations” comes up it sounds like groups of disadvantaged people that want to be compensated for everything that was done to them over hundreds of years. However, in some ways it’s about humanity advancing collectively and recognizing that there are disadvantaged groups.

Reparations can take many forms and needn’t just take monetary compensation. For instance, in Australia aboriginal people were told that we were the missing link and the most primitive form of humanity on the planet. We resisted this and argued about it right up until 1991, when a Torres Strait Islander man, Koiki Mabo, who went to university, took the government to the High Court and said, “I am a traditional owner of this island and my family has been one for thousands of years.”

The High Court examined the whole case, which took a long time, and the poor fellow died of cancer before it was decided. The Court found that the doctrine of Terra Nullius, that the country was empty, was in fact a false way of colonizing the place, and that obviously there was some form of native title.

In 1992, the Labour Government produced the Native Title Act because the law had to be amended to take account of this. They therefore set certain standards, hurdles that the indigenous people had to jump to prove that we still had a connection to our traditional land. We have to prove that we had a continuous traditional connection to our land, which is extremely difficult if you were rounded up and moved to another part and kept on mission for two or three generations.

The implementation of the Act was very slow and it didn’t give anybody very much at all. And then the Conservative Government in 1997 amended it again, so that to this day very few aboriginal people have gotten anything out of it at all.

Let me give you an example. The only great inland river system, the Murray-Darling Basin, runs through Australia. All the other rivers are short rivers that run straight to the coast. My grandmother lived in the hills in the summer months. In the winter, when it turns into a string of water holes, she would move down and drag the water holes for fish and crayfish. That became a seasonal movement for aboriginal people in that area.

The Yorta Yorta people were rounded up in 1890 and put on the mission where they were kept until the 1930s. Their lawyers said to them, “Get all the documentation so that you can claim traditional ownership of this country.”

Mind you it’s very rich country, but at the same time aboriginal people can only claim unused Crown land. If the land is being used, if it is a pastoral lease, if it’s freehold, you can’t possibly have a native title.

The Yorta Yorta, unfortunately, listened to their lawyers, and the judge found that they had no claim to their native title because they were locked away on mission a hundred years ago and lost most of their traditional language and traditional knowledge.

QUESTION: I’m interested in the developments in the international legal system that affect the more traditional, non-Western forms of justice.

JOHN SCOTT: One of the things that indigenous peoples have argued for is the recognition of customary law. For instance, in my country, traditional people in the far north may have a car accident, kill somebody and go to jail for it, and when they get out they are punished a second time by tribal law. So aboriginal people very much felt that they were living under two different legal systems, although the Western legal system certainly didn’t recognize the aboriginal system.

Aboriginal people argue for the recognition of custodian law within international human rights standards in areas like traditional knowledge. For instance, if a large extended aboriginal family owns a particular set of dreaming designs, or the dreaming story of the carpet snake, they have the right to protect that and to pass it on to future generations. Collective ownership should be recognized by the national and the international legal system.

In March 2004, the WIPO will have a meeting of its Inter-Governmental Committee on the Protection of Traditional Knowledge, Genetic Resources, and Folklore. Work is ongoing at the international level, but not on the broad front of the recognition of custodian law.

Aboriginal people see everything as being connected. However, when we go to the Western world, everything is compartmentalized. Therefore, I go to the Office of the High Commissioner of Human Rights if it’s about human rights, I go to the WIPO if it’s about traditional knowledge, I go to the World Health Organization if it’s about health.

Indigenous people see everything as linked, so your human rights are linked to your health, which is linked to your traditional knowledge, which is linked to the biodiversity on the land, which is linked to your native title.

The United Nations Development Agency recognizes full participation in development processes, so that nothing goes on unless indigenous people have participated in the decision from the very conception of an idea for development of a particular area.

There is a famous case referred to as the “carpets case” [Mulpurrurru v. Indofurn]. There were some traditional people who had concluded a deal with the Australian Museum to display some of their dreaming stories, which were done in the format of dot paintings. The Museum had a contract to display these with stories about what the painting was about, and they could even produce a calendar.

However, a carpet company in Western Australia sent the calendar to Vietnam to a carpet-making company and said, “We want you to make carpets based on all these traditional aboriginal designs.” Then the carpets were imported back into Australia for sale and the aboriginal people discovered them. People had thought, “Aboriginal people don’t own anything, they don’t really count. We will take their traditional stories and design and we’ll turn them into carpets for other people to walk on. There’s nothing wrong with that, is there?”

The aboriginal people who are the keepers of that knowledge can be punished by traditional law for not keeping it out of sight. Aboriginal people don’t believe, the way the West does, that all knowledge should be made available to all people. If you are a carrier of traditional knowledge, you have to identify people in the following generation who have shown enough respect to be safekeepers of that knowledge, so that they in turn can pass it on to future generations. Some aboriginal elders have even died with the knowledge because they didn’t find people worthy to hand it to. Others have had the knowledge recorded by anthropologists because they didn’t want it to be lost.

So the whole concept of knowledge is very different for aboriginal people. There’s a conflict at the moment between the African states and the indigenous people at the WIPO Inter-Governmental Committee meeting.

The African states said, “Look, we’ve been talking about it for two years. Now we just want to develop an international legal instrument to protect it because we’re worried that everybody is losing traditional knowledge and we’re hemorrhaging.”

Aboriginal people said, “No, we don’t want you to rush ahead to do this because we’re not convinced that you fully understand what it is we’re asking you to protect. We want you to think about this and to continue to meet for another year or two, because what’s the point of rushing ahead and developing something if you don’t know what it is we want you to protect? You’re still developing your understanding of it.”

In developing laws on an international level, you run into tension and disagreement.

JOANNE BAUER: John, thank you very much for being with us.

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