171. Fundamental Guarantees for Minorities. Modern international law contains certain basic guarantees for minority groups, in particular, rules prohibiting genocide, apartheid and racial discrimination. The fear is sometimes expressed that the recognition of Aboriginal customary laws would or might lead to a form of apartheid, to the partitioning of the Commonwealth into rigidly exclusive ‘bantustans’ on racial lines. Both Australian government policy and nearly universal international opinion condemn arrangements in the nature of apartheid. Apartheid is a government policy aimed at the separation and oppression of a particular racial group. Its essential feature is that it is a coercive form of separation or division denying a racial group the right to participate in public affairs. It is to be distinguished from the conferral of land rights or the establishment of reserves for an indigenous group. These do not constitute a form of apartheid, provided that there is no attempt to deny members of that group their normal civil and political rights, or to ‘divide the population along racial lines’. As Justice Brennan expressed it in Gerhardy v Brown:
The difference between land rights and apartheid is the difference between a home and a prison. Land rights are capable of ensuring that a people exercise and enjoy equally with others their human rights and fundamental freedoms: apartheid destroys that possibility.
The basic premise of the Terms of Reference, and of the Commission’s recommendations for the recognition of Aboriginal customary law, is ‘the right of Aborigines to retain their racial identity and traditional life style or, where they so desire, to adopt partially or wholly a European life style’. The recognition of Aboriginal customary laws will coexist with general civil rights, including the right to participate in public affairs. It will not involve the territorial or geographical restriction of Australian law, nor the creation of ‘customary law areas’ analogous to bantustans, where the protections of the general law do not apply. It is clear that no issue of apartheid arises in the context of this Reference.
172. International Law and Minority Rights. Apart from these basic protections, the question is whether international law or treaty provisions require national laws to establish some measure of protection for indigenous minorities, extending to the recognition of their customary institutions and rules. In fact the development of international law standards concerning minorities has been slow, faltering and tentative. States have been cautious in supporting special provisions for minorities (as distinct from guarantees of non-discrimination and equality), in part through fear of encouraging separatism and secession. There was some development of minority regimes in the inter-war period, but the position since 1945 has been one of emphasis on general human rights rather than on any special rights of minorities. Neither the United Nations Charter of 1945 nor the Universal Declaration of Human Rights of 1948 contains specific provisions relating to minorities. The first general treaty provision on the subject was Art 27 of the Civil and Political Rights Covenant of 1966. Article 1 of the Covenant also refers to the right of self-determination of peoples. Advocates for ethnic, indigenous or linguistic minorities sometimes rely upon the principle or right of self-determination in international law as a basis for claims to political or legal recognition. So far, however, that principle has been confined in international practice to situations involving separate (‘colonial’) territories politically and legally subordinate to an administering power. The dominant view is that the principle of self-determination in Art I has no application to indigenous or other minorities.
173. ILO Convention 107. The International Labour Organisation’s Convention No 107 concerning the Protection and Integration of Indigenous and other Tribal and Semi-Tribal Populations in Independent Countries was concluded on 26 June 1957. It is the only multilateral treaty so far to deal specifically with the position of indigenous peoples. Convention No 107 has so far been ratified by 26 States. Australia has not ratified the Convention despite the agreement of all the Australian States to its ratification. Nor has the Convention been ratified by Canada, the United States, the Soviet Union or New Zealand, all developed States with indigenous minorities. The Australian Government’s position was stated as follows in 1982:
there are a number of outmoded concepts in Convention No. 107. The Convention’s emphasis on ‘integration’ does not for example accord with the Government’s policy of recognising the fundamental right of Aboriginals to retain their identity and traditional life style where desired … [W]e understand that the ILO is looking at the possible need to redefine the objectives of the Convention, replacing the present emphasis on integration by the principle of respect for the indigenous population’s identity and wishes. As things stand, the Government feels that there are other international Conventions to which Australia is already a party, viz the Convention on the Elimination of All Forms of Racial Discrimination, and the Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, which better serve the interests of Australian Aboriginals.
Nonetheless, the Convention’s provisions on recognition of indigenous minority culture and traditions are of interest, and may be considered separately from other provisions of the Convention which may not reflect more recent thinking on the rights of indigenous peoples. The Convention, which applies to ‘tribal and semi-tribal populations in independent countries’ (Art 1), provides that:
due account should be taken of the cultural and religious values and of the forms of social control existing among these populations, and of the nature of the problems which face them both as groups and as individuals when they undergo social and economic change (Art 4(a));
the values and institutions of the said populations should, if possible, not be disrupted unless they can be replaced by appropriate substitutes which the groups concerned are willing to accept (Art 4(b));
in defining the rights and duties of the populations concerned regard shall be had to their customary laws (Art 7(1));
these populations shall be allowed to retain their own customs and institutions where there are not incompatible with the national legal system (Art 7(2);
Subject to ‘the interests of the national community and with the national legal system’-
· the methods of social control practised by the populations concerned shall be used as far as possible for dealing with crimes or offences committed by members of these populations;
· where use of such methods of social control is not feasible, the customs of these populations in regard to penal matters shall be borne in mind by the authorities and courts dealing with such cases (Art 8);
Procedures for the transmission of fights of ownership and use of land which are established by the customs of the populations concerned shall be respected, within the framework of national laws and regulations, in so far as they satisfy the needs of these populations and do not hinder their economic and social development (Art 13(1)).
174. Criticism of ILO Convention 107. The imprecision and lack of guidance provided by these articles has been strongly criticized:
The Convention … establishes no specific standards by which the acceptability of different customary institutions can be assessed, nor does it even in a negative way enumerate some of the factors which ought not to be considered reasonable grounds for outlawing traditional codes of behaviour … [G]overnments have, from time to time and for a variety of reasons, tried to eradicate by law or by force particular aboriginal habits, and it is to be regretted that the Convention has not done more to regulate this practice. It is especially disturbing that the Convention pays not even lip-service to the notion that indigenous communities should so far as possible be allowed to determine for themselves if and how, and at what rate, their customary law should be replaced by national legislation … The permissive terms in which Article 7(2) is expressed (indigenous populations ‘shall be allowed to retain their own customs’), may be another source of difficulty. Are States thereby placed under a positive duty to prohibit any activity, whether public or private, which is likely to undermine those customs or make their continued practice difficult or impossible? … Must the law recognise the validity of native, polygamous marriages although the dominant religion does not? … These questions, and a host of others, remain unanswered by Article 7(2).
The Convention provides at best a general indication of the extent to which recognition of indigenous customary law is consistent with other international standards, especially in the field of human rights. The decision to recognise indigenous customary laws or institutions remains a matter of policy rather than obligation.
175. The Civil and Political Rights Covenant. Article 27 of the Civil and Political Rights Covenant provides that:
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of the group. to enjoy their own culture, to profess and practise their own religion, or to use their own language.
Aborigines may be taken to be members of an ethnic minority (or perhaps a number of such minorities): under Art 27 they may not be denied the right ‘to enjoy their own culture’. However, it is not clear to what extent Art 27 imposes positive duties, as opposed to mere requirements of abstention, upon States parties. Under the Covenant, members of minority groups, in common with the other citizens, have individual rights to family life, to freedom of religion and association. Art 27 could be interpreted as merely precluding the State from interfering in the exercise of such rights by individuals ‘in community with other members of their group’. But this minimal interpretation of Art 27 does not seem satisfactory. It would make Art 27 into a redundant commentary on the other provisions. The view that Art 27 imposes substantive obligations has been adopted by the Human Rights Committee in a decision on a communication from a Canadian Indian under the Optional Protocol to the Covenant.
176. The Lovelace Case. Lovelace, a registered Maliseet Indian, lost her status as an Indian under the Indian Act 1970 (Canada) when she married a non-Indian. An Indian man who married a non-Indian woman would not have lost his status in this way. Subsequently her marriage broke up and she returned to live on the reserve, contrary to the Act. She was only saved from eviction from the reserve by threats made on her behalf against anyone attempting to remove her. She claimed violation of her rights under Art 2 of the Convention (on the basis of the sexually discriminatory rules defining Indian status), and under Art 27 (on the basis that the Indian Act prevented her from enjoying her own culture in common with other members of the tribe). The Human Rights Committee took the view that, at least after she ceased to live with her husband and returned to the reserve, the provisions of the Indian Act violated Art 27. One effect of Art 27, then, is to oblige a State to allow someone who is in fact a member of an ethnic minority group to associate with that group, even on reserve land. At the least, legal impediments must not be placed in the way of the exercise of rights under Art 27, unless these have a ‘reasonable and objective justification and [are] consistent with the other provisions of the Covenant’. It is also arguable that the failure to make equivalent legal provision for members of minority groups could contravene Art 27 in particular cases. A second point is that Art 27 protects individual members of minority groups , rather than groups as such. Conversely, because Art 27 does not depend on the legal status of the minority group as such, membership of a particular minority, and consequently rights under Art 27, do not depend on the legal recognition of minority status but are questions of fact. This point was clearly made by the Human Rights Committee:
At present Sandra Lovelace does not qualify as an Indian under Canadian legislation. However, the Indian Act deals primarily with a number of privileges which … do not as such come within the scope of the Covenant. Protection under the Indian Act and protection under article 27 of the Covenant therefore have to be distinguished. Persons who are born and brought up on a reserve, who have kept ties with their community and wish to maintain these ties must normally be considered as belonging to that minority within the meaning of the Covenant. Since Sandra Lovelace is ethnically a Maliseet Indian and has only been absent from her home reserve for a few years during the existence of her marriage, she is, in the opinion of the Committee, entitled to be regarded as ‘belonging’ to this minority and to claim the benefits of article 27 of the Covenant.
177. The Scope of Article 27. In the general sense there can be no doubt that the practice of customary laws and traditions should be regarded as an aspect of the culture of the relevant group, whether those laws and traditions relate to kinship, marriage or other issues. On the other hand, it has been suggested that the term ‘culture’ in Art 27 was intended in a narrower sense. The Capotorti Report mentions, under the rubric of ‘culture’, such matters as publication in and translation of books into the minority language, sponsorship in the arts, libraries and education. But the Report takes a very restrictive view of the effect of Art 27 on aspects of ‘legal culture’:
There cannot be any doubt that an effective and full protection of the culture of minorities would require the preservation of their customs and legal traditions which form an integral part of their way of life. However … there is ample justification for the widely expressed view that the maintenance of juridical institutions among minority groups ought to be conditioned by the State legislative policy.
It is not necessary to resolve this conflict over the scope of Art 27. The Commission’s function in this Reference is to advise the Commonwealth Government on precisely this question of ‘legislative policy’. The recommendations in this Report involve a degree of recognition of Aboriginal customary laws and traditions within the framework of Australian law. This is certainly consistent with Art 27, and it does not matter that it may go considerably further than the Covenant requires.
178. Conclusion: A Duty of Recognition? Suggestions have been made for a more comprehensive United Nations Declaration or Covenant on the Rights of Minorities and specifically of Indigenous Peoples, although progress towards this goal has been extremely slow. The present position is that Australia is not precluded by its international obligations from an extensive recognition of Aboriginal customary laws (subject to protection of the ‘human rights of individual Aborigines’, a matter dealt with later in this Chapter). However the only international obligation with respect to the granting of such recognition at present is Art 27 of the Civil and Political Rights Covenant, which imposes only limited obligations in this context.
Genocide is the deliberate physical destruction of a ‘national, ethnical, racial or religious group, as such’: Convention on the Prevention and Punishment of the Crime of Genocide (9 December 1948) 78 UNTS 277, Art II (to which Australia is a party). Thus genocide is restricted to forms of physical destruction. It does not include even deliberate acts aimed at the assimilation of a minority group or what is sometimes referred to as ‘cultural genocide’: cf JB Kelly, ‘National Minorities in International Law’ (1973) 3 Denver JILP 253, 269, pointing out that the Genocide Convention ‘has been interpreted as guaranteeing members of minorities the right to exist, and not necessarily as assuring the existence of the group itself (emphasis in original).
See para 147-150.
DE McLachlan, President, Law Society of NSW, Submission 358 (16 November 1982):
If such separate laws are to have a territorial basis … Australia would be establishing de facto Transkeis in its own brand of Apartheid … In view of the above, the Society is opposed to the whole concept of any attempt to codify and incorporate into our Australian system any part of Aboriginal customary law.
See especially Racial Discrimination Convention 1966, Art 3. This does not specifically define apartheid, but the term is defined in the United Nations Convention on the Suppression and Punishment of the Crime of Apartheid (1974) 13 ILM 50 (to which Australia is not a party). Under Article II of that Convention ‘the crime of apartheid is defined to include:
(c) Any legislative … and other measures calculated to prevent a racial group or groups from participation in the political, social, economic and cultural life of the country …
(d) Any measures, including legislative measures, designed to divide the population along racial lines by the creation of separate reserves and ghettos for the members of a racial group or groups …
See also para 795-9.
Gerhardy v Brown (1985) 57 ALR 472, 521-2.
See para 124.
cf Judge Tanaka (dissenting on other grounds), South West Africa Cases Second Phase ICJ Rep (1966) 6, 307, 314. See further WA McKean, Equality and Discrimination under International Law, Oxford University Press, Oxford, 1983, 105-15, 258-63.
P Thornberry, ‘Is there a phoenix in the ashes? International law and minority rights’ (1980) 15 Texas ILJ 421.
eg E Anderson, ‘The Indigenous People of Saskatchewan: Their Rights under International Law’ (1981) 7 American Indian Jnl No 1, 4, 7, 8-11, 17.
cf General Assembly Resolution 1541 (XV) (15 Dec 1980), establishing criteria for non-self-governing territories under Chapter XI of the Charter.
Capotorti Report, 35: ‘The only right of collective bodies is the right of peoples of self-determination. But this is an entirely different matter from the rights of members of minorities …’; A Cassese, ‘The Self-Determination of Peoples’ in L Henkin (ed) The International Bill of Rights. The Covenant on Civil and Political Rights, Columbia UP, New York, 1981, 92, 95-6. For a rather different emphasis see G Bennett, Aboriginal Rights in International Law, London, Royal Anthropological Institute of Great Britain and Northern Ireland, Occasional Paper 37, 1978, 50-2; RL Barsh, ‘Indigenous North America and Contemporary International Law’ (1983) 62 Oregon L Rev 73; I Brownlie, ‘The Rights of Peoples in Modern International Law’ (1985) 9 Bull ASLP 104, 108.
328 UNTS 247; Bennett, 70-8.
Commonwealth of Australia 95 Parl Debs (Sen) (25 August 1982) 517 (Senator FM Chaney).
Art 5 of the proposed Australian Bill of Rights, which is based on Art 27, would provide that: Persons who belong to an ethnic, religious or linguistic minority have the right, in community with other members of their own group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. See Australian Bill of Rights Bill 1985 (Cth).
To the extent that they are also a ‘religious’ and ‘linguistic’ minority they are entitled to ‘profess and practice their own religion’ and to `use their own language’. For the scope of these rights see the Capotorti Report, 38-40, 68-89. For the preparatory work for Art 27, id, 31-4.
id, 35-6, 97.
Views of the Human Rights Committee under Art 5(4) of the Optional Protocol concerning Communication No R.6/24 (30 July 1981): Report of the Human Rights Committee, GAOR 36th Sess, Supp No 40 (A/36/40), Annex XVIII, 166. For comment see AF Bayefsky, ‘The Human Rights Committee and the Case of Sandra Lovelace’  Can YBIL 244. Under the Optional Protocol, States parties to the Covenant recognise the capacity of individuals subject to their jurisdiction to bring complaints of violations of the Covenant before the Human Rights Committee. Australia has not yet ratified the Optional Protocol.
Indian Act 1970 (Can) s 12(1)(b). See para 140.
Lovelace Case, 173-4. Accordingly the Committee did not have to decide on the application of Art 2. See further para 191.
cf Capotorti Report, 36-7.
Capotorti Report, 35-6.
Lovelace Case, 173. cf Question of the Greco-Bulgarian Communities PCIJ SerB No 17, 22 (1930); Capotorti Report, 35.
Anthropologists use the term ‘culture’ in a broad sense to refer to all socially transmitted rules, values and practices in a particular society. cf MJ Swartz, ‘Cultural Sharing and Cultural Theory: Some Findings of a Five-Society Study’ (1982) 84 American Anthropologist 314. There are however indications of a narrower view in Art 15(1)(a) of the Economic Social and Cultural Rights Covenant. For the Commission’s approach see para 101, 208.
Capotorti Report, 100. In the literature on Art 27 very different views are expressed. On the one hand Modeen comments that Art 27 ‘merely states the obvious’, and is ‘no real advance’ on the Universal Declaration: T Modeen, The International Protection of National Minorities in Europe, Acta Academiae Aboensis, SerA, Vo137, No 1, 1969, 108. LC Green regards it as ‘purely negative’ and limited in character: ‘Human. Rights and Canada’s Indians’ (1971) 1 Israel YB on Human Rights 156, 188. LB Sohn seems to agree: ‘The Rights of Minorities’, in Henkin (1981) 270, 287. Bennett states that it is ‘a useful adjunct to the right of self-determination’, although its ‘emphasis on individual rather than collective rights … is inappropriate to aboriginal peoples whose lives are organised almost exclusively on a communal basis’: Bennett (1978) 43. On the other hand it has been described as a decisive turning-point in the work of the United Nations in this field: Y de Montigny, ‘L’ONU et la protection internationale des minorites depuis 1945’ (1978) 13 RJT 389, 433-6; and see Kelly, 266; Y Dinstein ‘Collective Human Rights of People and Minorities’ (1976) 25 ICLQ 102, 118. cf Thornberry, 450.
cf Sohn, 287-9; F Capotorti, ‘I Diritti dei Membri di Minoranze: verso una Dichiarazione delle Nazione Unite?’ (1981) 64 Rivista di Diritto Internazionate 30.
JG Starke QC reached essentially the same conclusion, although he suggests that the concept of ‘culture’ includes kinship rules and may therefore oblige Australia to give effect to Aboriginal customary law rules of kinship: Submission 153 (24 January 1980) 7. If so, the Commission’s recommendations comply with Art 27 in this respect.