by Rhodri C. Williams
The BBC yesterday picked up on a curious piece of legislative news from Australia, with the lower house of Parliament having unanimously passed a bill presenting a constitutional IOU to the country’s indigenous population. In effect, the legislator agrees to lead from the front in seeking to drum up popular support for constitutional recognition of Aborigines and Torres Straits Islanders, and to act on that support as soon as it is there:
“I do believe the community is willing to embrace the justice of this campaign because Australians understand that indigenous culture and history are a source of pride for us all,” Australian Prime Minister Julia Gillard said. “This bill seeks to foster momentum for a referendum for constitutional recognition of Aboriginal and Torres Strait Islander peoples.”
The bill comes as part of a longer term process of reconciliation dating back to the early 1990s, when a Royal Commission was set up to examine Aboriginal deaths in custody and the Australian High Court belatedly disowned the terra nullius doctrine that had premised the takeover of aboriginal land on the demeaning idea that it was not truly occupied by other human beings. This tradition of emphatic non-recognition of Aboriginal peoples was symbolically reversed in 2008 by then-Prime Minister Kevin Rudd’s groundbreaking apology to the Aboriginal and Torres Strait Islander peoples:
We today take this first step by acknowledging the past and laying claim to a future that embraces all Australians. …. A future where all Australians, whatever their origins, are truly equal partners, with equal opportunities and with an equal stake in shaping the next chapter in the history of this great country, Australia.
The present bill is admirably short and pithy. In its Article 3, entitled ‘Recognition’ it sets out a series of propositions that are revolutionary only in their self-evidentness:
(1) The Parliament, on behalf of the people of Australia, recognises that the continent and the islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples.
(2) The Parliament, on behalf of the people of Australia, acknowledges the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters.
(3) The Parliament, on behalf of the people of Australia, acknowledges and respects the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples.
It then goes on to mandate the Prime Minister to “consider the readiness of the Australian public” to support a constitutional referendum on recognition of Aboriginal peoples and take steps to that effect within 12 months from its entry into force. The explanatory memorandum goes on to explain in somewhat more detail the thinking behind this somewhat unorthodox legislative approach:
This Bill reflects an intention to pursue meaningful change to the Constitution that echoes the hopes and aspirations of Aboriginal and Torres Strait Islander peoples and unites the nation. It is one part of the ongoing conversation that needs to happen in the lead up to constitutional change. In particular, the Bill will enable all Australians to become familiar with formal recognition of Aboriginal and Torres Strait Islander peoples ahead of constitutional change.
A review provision sets out a process for Parliament to consider next steps towards constitutional recognition, while a sunset provision ensures that legislative recognition does not become entrenched at the expense of continued progress towards constitutional change.
The Bill is not intended to be a substitute for constitutional recognition. …. The Bill does not restrict the scope of future issues for debate in regards to constitutional recognition of Aboriginal and Torres Strait Islander peoples.
In the annals of the law and society debate, this Bill may come to represent something of a hallmark. As a legislative attempt to encourage consensual change rather than simply ram change home based on an argument of necessity, it stands out both in its transparency and in the relatively sophisticated mechanism it seeks to set up. It also represents a sterling example of new constitutional approaches to managing diversity that posit a more sustainable relationship through transparent, participatory and open-ended processes than through foreclosing such processes with an unalterable compact.
There is of course a risk that this type of legislation may be seen as an attempt by the Government to play for time or appease reactionary elements in society. On the other hand, accommodating minority demands always imposes a cost on the majority (or in any event prevents the majority from externalising such costs any longer). If Australia’s current moral redistribution and its political and economic consequences are to be sustainable in a democratic system, then it is imperative that bills such as the present one help to undergird moral necessity with political consensus.
“The Endorois decision” – Four years on, the Endorois still await action by the Government of Kenya
by Rebecca Marlin
Rebecca Marlin is currently the Legal Fellow at Minority Rights Group International (MRG) in London. She earned her B.A. from Wellesley College and her J.D. from Fordham University School of Law. During her time at MRG she will be working extensively with the Endorois to achieve implementation of the 2010 African Commission decision granting them rights to Lake Bogoria.
For the Endorois of Kenya’s Lake Bogoria, the process of reclaiming their land from the government of Kenya has been one step forwards and two steps back. In 2003, MRG and partner organisation Centre for Minority Rights Development (CEMIRIDE), acting on behalf of the Endorois Welfare Council, went before the African Commission on Human and Peoples’ Rights to demand that the Kenyan government recognise the rights of the Endorois to Lake Bogoria.
The Endorois had inhabited Lake Bogoria for over 300 years before being evicted by the government in the 1970s. In 2010, the Endorois won the landmark case Centre for Minority Rights Development and Minority Rights Group International (on behalf of Endorois Welfare Council) v Kenya. The land rights aspects of this groundbreaking decision have been discussed on this blog here and some of the regional implications here.
A pattern of empty promises emerges
Immediately following the Commission’s ruling in February 2010, the government of Kenya welcomed the decision, promising to begin implementation. A large celebration of the decision was held at Lake Bogoria; the Minister of Lands was in attendance and the momentous occasion was broadcast on television nationally. Kenya’s progressive National Land Policy had been enacted only a few months prior to the ruling and, with a forward-thinking new Constitution in the drafting stages, it seemed the decision might soon be translated into restitution of land, compensation, and benefit-sharing for the Endorois.
However, in May 2010, a report on implementation due to be submitted by the government of Kenya to the African Commission failed to arrive. Throughout 2010 and 2011, the government of Kenya failed to take any significant action on the recommendations. One MP openly challenged the Minister of Lands in Parliament about this delay in January 2011; the official response from the Minister was that he would not be able to take any action until he received an official sealed copy of the 2010 decision – despite the fact that the decision had been officially adopted and published one year earlier. A sealed copy was thereafter delivered to the Minister, but this did little to improve the situation.
When pressed on the matter, the government continues to affirm that it supports the decision and is taking steps to carry out the Commission’s recommendations. Yet, steps taken by the government indicate the exact opposite and new legislation on Lake Bogoria threatens to further separate the Endorois from their land.
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Posted in Commentary, Guest posting
Tagged ACHPR, Africa, compensation, indigenous groups, Kenya, reparations, restitution