Silent witnesses: Implementation of international human rights as warrants for archival agenda for Indigenous Australians

Livia Iacovino

Archives without Borders

International Congress

Professional associations KVAN (The Netherlands) and VVBAD (Flanders, Belgium)with support of the Section of Professional Associations of the International Council on Archives (ICA/SPA )

The Hague

30 and 31 August 2010

Human rights: warrants for an archival agenda

International human rights instruments place legal and moral obligations on archival organisations, archivists, records managers and record participants.

“A human rights interest inheres in all people and remains operative in the form of a moral and international law based on human rights, whether or not there is an accompanying domestic law right.”

(Bailey, Peter (2009) The human rights enterprise in Australia and internationally. Chatswood, N.S.W. LexisNexis Bailey p. 28)

“The quintessential concern of the human rights enterprise is to raise to a status of dignity and equality each powerless person - persons who for reasons such as law, poverty, race, religion or gender are unable to achieve dignity, fairness, basic equality and justice”

(Bailey, Peter (2009) The human rights enterprise in Australia and internationally. Chatswood, N.S.W. LexisNexis. p. 5).

Indigenous Australians

Indigenous Australians compromise Aboriginals who have been in Australia for more than 40,000 years and include hundreds of tribal groups and clans, and a smaller group, Torres Strait Islanders who are of Melanesian origin. They are Australia’s “first nations” or “Indigenous Australians”. The Indigenous population in 2006 numbered 517,174, or approximately 2.5% of the total Australian population.

Indigenous Australians

The Indigenous social surveys indicate Indigenous peoples are maintaining their links to Indigenous cultures.

Self-identification as accompanied by acceptance by members of the relevant community is the accepted definition of an “Indigenous person”, an approach also adopted in the United Nations Declaration on the Rights of Indigenous Peoples 2007.

Indigenous Australians and human rights

Australia has no national human rights charter. In April 2010 the Australian Government recommended an ‘Australian Human Rights Framework’ which includes support for the Declaration on the Rights of Indigenous Peoples.

The Human Rights Acts in the Australian States of the ACT and Victoria look beyond domestic law to international law.

•Charter of Human Rights and Responsibilities Act 2006 (VIC)

rights have a special importance for the Aboriginal people of Victoria, as descendants of Australia's first people, with their diverse spiritual, social, cultural and economic relationship with their traditional lands and waters. (Charter of Human Rights and Responsibilities Act 2006 Preamble)

•Human Rights Act 2004 (ACT)

The right of self determinationInternational Warrants

The principle and right of self-determination is recognised in common Article 1 of International Covenant on Civil and Political Rights (ICCPR) and in the International Convention on Economic, Social and Cultural Rights (ICESCR) 1966, both ratified by Australia. See also:

•ICESCR 15 (Also in UDHR Art 27 but non-binding)•DRIP 2007 (adopted by Australia) Art 3, Art 4, Art 7, Art 8.•ILO Convention 169 1989 (not ratified by Australia) Article 2

Domestic Warrants

No clear reference to Indigenous self-determination in any Australian jurisdiction.

The right of non-discrimination

International Warrants

•UN Charter 1945 Art 1(3)

•ICCPR 1966 and ICESCR 1966 Article 2 (Both ratified by Australia)

•ICCPR 1966 Art 27

•CERD 1965 (Ratified by Australia)

•DRIP 2007 Art 2

Domestic warrants

Anti-discrimination law under Commonwealth and state (includes racial discrimination) based on international instruments

The right to know the truth and the right of reply

International Warrants

•United Nations, Commission on Human Rights, 2005 Promotion and Protection of Human Rights: Impunity Report of the Independent Expert to update the Set of Principles to Combat Impunity, 8 February 2005, (Principle 17 (b))

•Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, including the Right to Development, 12 October 2009, Resolution adopted by the Human Rights Council, 12/12, Right to the truth.

Domestic warrants

Individual rights relating to correction of inaccurate information (not as extensive as right to truth) are included in domestic FOI and health records.

Rights of Indigenous Peoples as collective human rights

International Warrants

Collective rights •UDHR Art 1 [community] •UDHR Art 18, 22, and 27 confirmed in: ICCPR art 1 and 27 [community/minority right]•ICCPR Art 23 [family]•ICESCR Art 10 [family]

Indigenous collective rights•DRIP Art 1 •ILO 169 Art 2(2) (b) and (c), 4, 5, 7, 23, 26-31

Domestic warrantsNone

Rights of Indigenous Peoples as collective human rights: privacy and authorship

International Warrants

Collective privacy right •ICCPR Art 17 (1) (privacy) [same as UDHR Art 12]•European Convention on Human Rights (1950) Art 8•Council of Europe Convention for the protection of individuals with regard to automatic processing of personal data (1981) Art 3, 2 (b)

Indigenous collective authorship •DRIP Art 1 with 31 (see also DRIP Art 12 (1) cultural rights)

Domestic warrants

No Australian instruments include provisions for communal rights to privacy or authorship

Rights of Indigenous Peoples as cultural human rights

International Warrants

•DRIP 2007 Art 12 (1); Art 1 with Art 31 •WIPO 2010 The protection of traditional cultural expressions/ expressions of folklore: revised objectives and principles •UNESCO 2001 Universal Declaration on Cultural Diversity, •UNESCO 2003 Convention for the Safeguarding of the Intangible Cultural Heritage (not ratified by Australia)•UNESCO 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Accession by Australia 2009) •CBD 1993 Article 8(j)(Australia is a party to Convention)

Domestic warrants

Charter of Human Rights and Responsibilities Act 2006 (VIC) s 19 Cultural Rights (2)

On the basis of these international human rights instruments to which in most cases Australia is a signatory and relevant Australian law, Indigenous communities are globally recognised to have inherent rights to preserve their collective identity while participating in the national culture. These international human rights instruments are also relevant to Indigenous communities in other countries.

Trust and Technology: Building An Archival System for Indigenous Oral Memory concluded that policies and practices in archival institutions were often not in line with international and domestic instruments that support the assertion of Indigenous human rights http://www.infotech.monash.edu.au/research/centres/c

osi/projects/trust/final-report/

Archival requirements for Australian Indigenous human rights

•policy and procedural changes in the responsibilities of the archival profession and institutions

•adoption of the language of human rights in archival services and protocols

•archival annotation systems to allow for the “right of reply”

•rights to control third party access by the “subjects” of the record or their descendants

• archival engagement with Indigenous communities in the management of records about them

Indigenous human rights are limited by how archival systems capture and define record creators and consequently who has control over records about Indigenous communities and individuals. The Trust and Technology project recommended:

• Expanding definition of record creators to include everyone who has contributed to a record’s creative process and has been affected by its action. http://www.infotech.monash.edu.au/research/centres/cosi/projects/trust/deliverables/principles-6.html

From a records continuum perspective, human rights apply to the protection of Indigenous culture in any form—oral or written—created by Indigenous or non-Indigenous organisations, whether or not in archival custody.

Review and revise, using the language of human rights, the Aboriginal and Torres Strait Islander Protocols for Libraries, Archives and Information Services 1995, updated 2005

Response•Update Indigenous archival protocols, memo of understandings and agreements

Collective Rights of Indigenous peoples to be taken into account on an ongoing basis, in the capture, appraisal, management, preservation and access to records that form part of their cultural knowledge

Response•Reform socio-legal frameworks

Under the Victorian Charter of Human Rights and Responsibilities Act 2006 examine the policies and actions of the Public Records Act (VIC) and in terms of compatibility with the Charter’s s19 and international conventions to ensure special provisions for Indigenous Victorian communities

Response•Engage with legal experts in human rights

Engage Indigenous communities, on an ongoing basis, in the capture, appraisal, management, preservation and access to records that contribute to their self-determination and cultural identity

Response•Trial a participant model to an archival program/institution within a records continuum framework

Develop procedures to enable Indigenous communities or individuals to exercise a right of reply; make comments upon the inaccuracies or limitations of institutional records, to contribute family narratives which expand upon or give context to institutional records and to present alternative versions of events

Response•Use annotations as a right of reply, extend this right to descendants of Indigenous record subjects, and ensure annotators retain ownership of the annotations•Example: KAS

Acknowledgement• Trust and Technology: Building an archival system for

Indigenous oral memory is an Australian Research Council Linkage project, with a partnership between Caulfield School of Information Technology, Monash University, Centre for Australian Indigenous Studies, Monash University, the Public Record Office of Victoria, the Koorie Heritage Trust Inc., the Victorian Koorie Records Taskforce, and the Australian Society of Archivists Indigenous Issues Special Interest Group. http://www.infotech.monash.edu.au/research/centres/cosi/projects/trust/

• Trust and Technology, Final report, exposure draft position statement: Human rights, Indigenous communities in Australia and the archives prepared by Livia Iacovino, Eric Ketelaar and Sue McKemmish, 2009 http://www.infotech.monash.edu.au/research/centres/cosi/projects/trust/deliverables/human-rights.html