By Sameer Gupta and Sankalp Udgata
The saga of a Global Indigeneity Heist pioneered over a 9.4km rock.
About The mystical Uluru
Uluru (Ayres Rock) is a UNESCO World Heritage site in Australia and is a living cultural landscape which is considered sacred to the aboriginal Anangu Yankunytjatjara and Pitjantjatjara people. The monolith has been of great spiritual and cultural significance for these local indigenous tribes for over 10,000 years. The aboriginals and their natural habitation area are quite often protected within the municipal law of the country.
However, indigenous conservation has often witnessed scenarios where the economic and military requirements of different countries have superseded the interest of tribal populace. This is precisely the unfortunate narrative of the Uluru Tribes and their homeland which has witnessed countless sensitisation attempts like the Uluru Statement from the Heart and Please Don’t Climb Uluru. With no international legal norm currently established at the world stage, the international recognition of tribes seems a legal fiction.
Domestic impediments- Economy vs. Preservation
For almost five decades now, the central terms of Indigenous policy of Australia have been self-determination and the slightly less assertive self-management until recently when the domestic policies of Australia have served as an impediment to the in situ conservation of the Uluru Aboriginals.
Tourism industry as a threat to indigenous conservation
Tourism has been an age-old antithesis to preservation of culture. Uluru is no different. Tourism at Uluru largely began in the 1960s, and it soon became a booming ground for the tourism market. Unfortunately, Uluru’s visitors don’t care much about its sacrosanctity or the signs that discourage a climb or litter. It is when the urge to take home parts of the rock masters the visitors’ infallible human conscience, that the spirituals lose faith in the spirit of tribal rights. The tourism activities in and around Uluru has led to its substantial degradation which is direct contravention of the Tribal Rights.
The defence manoeuvres: A bullet in the heart of Uluru
Pine Gap (a strategic defence base) was established in Alice Springs in 1966 which had giant antennae that could listen to very weak signals to deduce enemy weapons capabilities. Existence of many other similar military bases in close proximity to the Uluru has subverted its cultural sanctity which forms the corpus of tribes residing around Uluru.
Indigenous people and Conservation
The conservation of Tribals is ostensibly provided under the Municipal law and scarcely under International Law.
The Municipal Tokenism
Besides the Uluru – Kata Tjuta National Park Management Plan for the management of the National Park for 2010-2020 administered by the Ministry of environment and energy, Australia, there is no legislation which seeks to protect the sacred site and the rights of the Tribal populace.
Uluru which forms the heart of the tribal population is witnessing a situation wherein it is not receiving safeguards both domestically and internationally. The management plan for the Uluru National Park only provides for a myopic view devoid of any concrete measures to protect the sacred site. The domestic apathy towards the tribes and their homeland is evident from the lack of a domestic legislation to protect the monolith.
Lack of an International Legal norm (A Pauper’s approach)
Although the International instruments address the Human Rights and other basic rights issues, International law does not have any specific instrument to grant international recognition to tribal rights. The UDHR (19 &25) and UN Charter’s (55 & 56) futile attempts to widen the scope of respect for equal rights and self-determination to encompass protection of tribal rights and cultural unity have long given way to the need of a separate robust tool to achieve those goals.
The ICCPR, ICESR and CERD requires signatory nations to affirm the rights of persons belonging to ethnic, linguistic, and religious minorities to enjoy their cultural practices in association with one another, which constitutes a marginal acknowledgment of group rights and cultural rights. The misery continues to lie in the fragmentary approach of these conventions. Despite acknowledging that indigenous peoples were entitled to a distinctive set of human rights, the ILO’s Indigenous and Tribal Populations Convention failed to achieve their integration into the mainstream community with a special status.
The Lambaste-worthy UNDRIP
It is pitiful that the closest we have come to recognising collective rights for indigenous people, distinctive vis-à-vis their cultural and political status and their relationship with their traditional lands, is the Declaration on the Rights of Indigenous Peoples.
What is rarely known, however, is that a number of provisions regarding collective rights were dropped from the 1993 version of the draft (also approved by Indigenous Peoples) in the series of unfortunate compromises that led to the 2006 draft approved by the Human Rights Council. Enumerated below are few such objectionable amendments in the 2006 version.
|1993 version||2006 version|
|Emphasis on collective rights||No explicit reference to collective rights|
|Explicit recognition to indigenous peoples’ right to freely determine their relationships with States||No such provision|
|Protection from removal of indigenous children from their families and communities under any pretext||Protection from only forced removal that too from groups|
|Tribals were accorded full guarantees against genocide||Shall not be subjected to any act of genocide|
The amendments were made to suit the ill-founded complaints by some States that the declaration did not respect the universality of human rights and was potentially discriminatory. Amongst the major countries that opposed the Declaration, were United States, Canada, New Zealand and Australia. Of these, currently, Australia remains one of the few countries to have not reversed its stance. Not surprised, right? Cumulatively, International law does not envision protection for the Tribals and any protection can be accorded only through farfetched interpretations of law.
Affirming Tribal / Indigenous Sovereignty
Given that International law only pertains to the actions of the sovereign, establishing tribal sovereignty is an essential prerequisite for their self-determination as traditionally conceived. Self-determination aimed not at anarchic secession but linguistic and cultural preservation as also insinuated by the ECOSOC.
Recognizing the Uluru Aboriginals as Global citizens
While settler states and tribal nations both permit naturalization, tribal nations continue to use jus sanguinis descent rules as the exclusive determinant of tribal birthright citizenship. With most liberal democracies supplementing jus sanguins rules with jus soli principles, it would not be incorrect to say that achieving recognition for tribes as global citizens is not an impossible foresight but a necessary goal. Therefore, the modern notions of delocalisation of rights over land and cultural birth rights must be transposed even to protect the tribes in Uluru as that is what the UNDRIP warrants and the UDHR demands.
Global citizenship encompasses a range of conceptual frameworks, denoting cultural and political membership in an indigenous community, participation in indigenous law-making, and a distinctive legal status governing the relationship between indigenous citizens and tribal or settler governments.
Summing Up: Moving towards synergy
Perhaps, the time has arrived when the law of nations comes up more civilized and sensitive towards the indigenous conservation of tribes. Firstly, the Tribes should be granted the right of self-determination by organizing cooperative societies to govern themselves. Secondly, the domestic policies on defence and tourism should be made in sync with the in situ conservation of Uluru tribes. Thirdly, indigenous sovereignty and global citizenship should be accorded to these tribes for a greater autonomy and recognition. These safeguards will however not flow on the volition of States especially when the Australian government has shown continued apathy towards the Uluru tribes.
Therefore, an international instrument is a perquisite to mandate such safeguards domestically. Especially when international law is governed by the rule of pacta sunt servanda, Australia will have to necessarily adhere to the international standards to protect the sacred site ‘Uluru’.
Furthermore, since conservation enforced by the creation of protected areas ingresses cultural ethnocentrism and eviction and abuse of tribal population and nonetheless fails to check the deepening environmental crisis, conservation should centre on protecting the land rights of the people to whom these vitally important areas are home. One is most capable to look after her own home and her survival depends on it.
The authors are students at the National University of Study and Research in Law, Ranchi.