Section 3 Asia - India

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

[21] Hall N, Higman B. Slave Society in the Danish West Indies: St. Thomas, St. John and St. Croix. Jamaica: University of the West Indies Press; 1994. p. 287

[22] MacDonald Beckles H. From land to sea: Runaway Barbados slaves and servants, 1630-1700. In: Heuman G, editor. Out of the House of Bondage. Runaway, Resistance and Marronage in Africa and the New World. London: Frank Cass and Company Limited; 1986.

[23] Muñoz M, Román M. Mujeres negras en el Chile del Siglo XVIII. Esclavitud, silencios y representaciones [thesis]. Santiago: Universidad de Chile, FFH; 2002

[24] Culture M. Zion, la foi des Rastas.

[25] Espinoza A, Ociosos A. Vagabundos y Malentretenidos en Chile Colonial. Santiago: Dibam, Lom Ediciones;

[26] González C. Subordinaciones y Resistencias de la Servidumbre Esclava: el Caso del Negro Antonio (Santiago de Chile, 1767-1768). Cuadernos de

Historia. 2006;**25**:119-143

Paris: Editions L'Harmattan;

pp. 79-94

2003. p. 193

1999. p. 173

**94**

**97**

**Chapter 6**

**Abstract**

*John P. Williams*

ing into their new surroundings?

US supreme court, H-1B visa

**1. Introduction**

Journey to America: South Asian

Diaspora Migration to the United

This chapter examines the immigration of South Asian and Indian populations to the United States between 1820 and 2015. More specifically, this effort scrutinizes legislative changes in immigration policy enabling this group to become the second largest immigrant group after Mexicans in the United States. These changes include the following: the removal of national origin quotas, the introduction of temporary skilled worker programs, and the creation of employment-based permanent visas. Because of these policy changes, by 2015, South Asian immigrants, primarily Indians, had become the top recipients of high-skilled H-1B temporary visas and were the second-largest group of international students in the United States. All told, this study will answer the following questions: What are the origins and demographics of these emigrants who make up the South Asia diaspora? What fields of endeavor are they drawn to by their prior education and skill sets? To what geographic locations have they migrated? And how successful are they in assimilat-

**Keywords:** assimilation, diaspora, immigration, xenophobia, sojourners,

In recent years, the diversity within the Asian-American population and their varied, often contrasting, patterns of immigration and experiences have been recognized and underscored in American multi-cultural studies. While the bulk of these work have centered on Chinese, Japanese, and Korean experiences, a new group from across the Pacific has emerged. This group consists of arrivees from India numbering in the millions between 1965 and 2015 with a separate racial identity and demographic status along with two distinct advantages over their Asian brethren—with higher levels of education and income levels ([1], p. 131).

Over 31 million people of Indian birth or descent are part of the Indian diaspora spread around the globe. Their social and cultural diversity is represented in 33 major languages and some 1500 minor ones, seven major religions, and a mélange of six major ethnic groups [1]. Included in this group is more than three million

States (1965–2015)

#### **Chapter 6**

## Journey to America: South Asian Diaspora Migration to the United States (1965–2015)

*John P. Williams*

#### **Abstract**

This chapter examines the immigration of South Asian and Indian populations to the United States between 1820 and 2015. More specifically, this effort scrutinizes legislative changes in immigration policy enabling this group to become the second largest immigrant group after Mexicans in the United States. These changes include the following: the removal of national origin quotas, the introduction of temporary skilled worker programs, and the creation of employment-based permanent visas. Because of these policy changes, by 2015, South Asian immigrants, primarily Indians, had become the top recipients of high-skilled H-1B temporary visas and were the second-largest group of international students in the United States. All told, this study will answer the following questions: What are the origins and demographics of these emigrants who make up the South Asia diaspora? What fields of endeavor are they drawn to by their prior education and skill sets? To what geographic locations have they migrated? And how successful are they in assimilating into their new surroundings?

**Keywords:** assimilation, diaspora, immigration, xenophobia, sojourners, US supreme court, H-1B visa

#### **1. Introduction**

In recent years, the diversity within the Asian-American population and their varied, often contrasting, patterns of immigration and experiences have been recognized and underscored in American multi-cultural studies. While the bulk of these work have centered on Chinese, Japanese, and Korean experiences, a new group from across the Pacific has emerged. This group consists of arrivees from India numbering in the millions between 1965 and 2015 with a separate racial identity and demographic status along with two distinct advantages over their Asian brethren—with higher levels of education and income levels ([1], p. 131).

Over 31 million people of Indian birth or descent are part of the Indian diaspora spread around the globe. Their social and cultural diversity is represented in 33 major languages and some 1500 minor ones, seven major religions, and a mélange of six major ethnic groups [1]. Included in this group is more than three million

Indian Americans, or 1% of the total US population.1 This makes foreign born Indians the second largest immigrant group after Mexicans, who account for almost 6% of the 43.3 million foreign born population ([2], p. 1).<sup>2</sup>

These numbers tell only half of the story. Not only are these migrants doing well, they are inclined to stay connected with their homeland through investments, philanthropy, and personal involvement. For most emigrants who have traveled from India to other parts of the world, they see it as their obligation and a welcome responsibility. The Indian diaspora has established countless highly organized, well-funded, and professionally managed outreach groups for Indian immigrants. These organizations address a broad range of issues and take on many different forms, include philanthropic projects to improve health and education in India, advocacy organizations business and professional networks, media outlets, and societies for the promotion of Indian culture, language, and religion.

Studies of Indian migrants to the United States are often relegated to the field of "third world" or "developing nations" studies. However, given the relative success of these immigrants, they must now be understood in the same context as that of early Western European, East Asian, and recent West African migrants.

Asian Indians are by far the richest and most educated ethnic group in one of the richest and most powerful nations in the world. They are disproportionately employed in high-status, high-skill professions. Their median household income is nearly twice as high as that of white households in the US, and they attain graduate and professional degrees at nearly four times higher than whites. They furnish over 10% of the labor force in computer-related and many other technical fields. These successes have also led to them to the boardrooms and executive offices of some of the most iconic US corporations, including Microsoft, Google, Adobe, PepsiCo, MasterCard, and Citibank. It can be argued they have become a model minority in America since Indian Americans have some of the lowest rates of poverty, incarceration, divorce, and reliance on public welfare in the nation ([3], p. x).

#### **2. In the beginning**

The earliest recorded Indian emigrant to the United States was from Madras, who traveled to Massachusetts in 1790. A number of Indians were brought to the United States by seafaring Captains who worked for the East India Company to serve in their households as servants. Only a trickle of other Indian merchants, seaman, travelers, and missionaries followed, amounting to a total population of less than a 1000 by 1900 ([4], p. 3). Many of these transplants were born in British-ruled in India after having either completed their military service or jumped ship in port ([5], p. 2).

By 1910, the number of Indian immigrants slowly rose to 3000, having settled on the Pacific Coast as agricultural workers. Many were Sikhs from Punjab seeking better fortunes in the West. Additional immigrants would come and work on the Western Pacific railroad and take employment in the lumber mills of Washington State ([4], p. 3).

**99**

*Journey to America: South Asian Diaspora Migration to the United States (1965–2015)*

With the rising numbers of Asians on the West Coast, racist attacks soon followed. White Americans would single out Chinese, Japanese, and Indians as threats to employment opportunities, land acquisition, and American culture. Organizations such as the Asiatic Exclusion League and the American Federation of Labor stepped up their attacks in the media and lobbied for laws excluding them from housing, education, and labor. Sadly, many Indians were accosted with verbal taunts where they were called "ragheads" or deemed the "Hindu Menace" ([6], p. 5).3 In the early twentieth century, hundreds of South Asians, mostly Sikhs but also many Muslims, came to North America from Punjab—the vast majority of them former soldiers who had served in the British colonial army in East Asia. While many Indian laborers came as "sojourners" rather than as settlers; they lived frugally, and their sole object being to return to Indian with their savings [6]. Instead of returning home to a farming economy under severe stress due to British colonial practices, they sought their fortunes in various settlements on the West Coast,

Within a few years, many more migrants from Punjab soon followed, establishing the first Indian community in the United States while working on the Western Pacific Railroad, in lumber and construction, or as agricultural laborers. The owners of these industries valued the migrant Indian laborers because they worked long hours for lower wages (about half) than their European immigrant counterparts and showed deep appreciation for the opportunity to work and pursue the American Dream. While Asian Indian migrants were settling on the West Coast in various jobs, other Indian migrants were settling on the East Coast. These recent transplants, a few Muslim traders from Bengal, began peddling "exotic" wares from India, such as embroidered silks, rugs, and perfumes. While many stayed on the East Coast, others moved inland to cities in the Midwest and in the Deep South. Port cities such as New York City, San Francisco, New Orleans, and Charleston were also popular

destinations for many Bengali Muslim sailors who jumped British ships.

pay, and partly because of rampant racism and anti-Asian sentiment.

state and later California in the early twentieth century.

Another contingent of migrants from India included university students who came to America to study mathematics, science, engineering, medicine, and law.4 Many Indian students came to study at the University of California at Berkeley on the West Coast and several Ivy League schools on the East Coast. However, their numbers started to decrease when both the United States and British governments started to cooperate in limiting Indian immigration. Even though the number of students migrating to America for educational purposes was stunted, Indian American immigrants still sought educational opportunities when given the chance ([7], p. 3).

With the rise of hostilities toward Catholics, Orthodox Christians, and Jews who had immigrated to America from eastern and southern Europe, provoking strong xenophobic and nativist hostilities, South Asians also attracted this hostility as well. Fewer than 5000 of them lived in the United States in 1920. This was largely the by-product of them being seen as competitive labor, willing to do local jobs for less

<sup>3</sup> The use of "Hindu" as a pejorative label for Indian Americans has historical antecedents in the United States and Canada and can be traced to the arrival of the first wave of Indian immigrants in Washington

<sup>4</sup> An excellent example of an Indian immigrant who took advantage of educational opportunities in America would be Bhimrao Ramji Ambedkar, the future Dalit icon and architect of the Indian constitution, attended Columbia University as a PhD student, in New York City between 1913 and 1916.

*DOI: http://dx.doi.org/10.5772/intechopen.88118*

between Vancouver and San Francisco.

**3. Anti-Asian sentiment**

<sup>1</sup> In 1907 there were less than 4000 Asian Indians living in America. The first anti-immigration law was passed in 1882, The Chinese Exclusion Act. In 1913, California passed the Alien Land law, mainly targeting Japanese immigrants, after California's attorney general also barred Indians from owning property in the state. The "Hindu invasion" as it was called contributed greatly to many stereotypes and various forms of discrimination.

<sup>2</sup> The United States is the third most popular destination for Indian emigrants worldwide, after the United Arab Emirates and Pakistan. Other top destinations include Saudi Arabia, Kuwait, Oman, and the United Kingdom.

#### *Journey to America: South Asian Diaspora Migration to the United States (1965–2015) DOI: http://dx.doi.org/10.5772/intechopen.88118*

With the rising numbers of Asians on the West Coast, racist attacks soon followed. White Americans would single out Chinese, Japanese, and Indians as threats to employment opportunities, land acquisition, and American culture. Organizations such as the Asiatic Exclusion League and the American Federation of Labor stepped up their attacks in the media and lobbied for laws excluding them from housing, education, and labor. Sadly, many Indians were accosted with verbal taunts where they were called "ragheads" or deemed the "Hindu Menace" ([6], p. 5).3

In the early twentieth century, hundreds of South Asians, mostly Sikhs but also many Muslims, came to North America from Punjab—the vast majority of them former soldiers who had served in the British colonial army in East Asia. While many Indian laborers came as "sojourners" rather than as settlers; they lived frugally, and their sole object being to return to Indian with their savings [6]. Instead of returning home to a farming economy under severe stress due to British colonial practices, they sought their fortunes in various settlements on the West Coast, between Vancouver and San Francisco.

Within a few years, many more migrants from Punjab soon followed, establishing the first Indian community in the United States while working on the Western Pacific Railroad, in lumber and construction, or as agricultural laborers. The owners of these industries valued the migrant Indian laborers because they worked long hours for lower wages (about half) than their European immigrant counterparts and showed deep appreciation for the opportunity to work and pursue the American Dream.

While Asian Indian migrants were settling on the West Coast in various jobs, other Indian migrants were settling on the East Coast. These recent transplants, a few Muslim traders from Bengal, began peddling "exotic" wares from India, such as embroidered silks, rugs, and perfumes. While many stayed on the East Coast, others moved inland to cities in the Midwest and in the Deep South. Port cities such as New York City, San Francisco, New Orleans, and Charleston were also popular destinations for many Bengali Muslim sailors who jumped British ships.

Another contingent of migrants from India included university students who came to America to study mathematics, science, engineering, medicine, and law.4 Many Indian students came to study at the University of California at Berkeley on the West Coast and several Ivy League schools on the East Coast. However, their numbers started to decrease when both the United States and British governments started to cooperate in limiting Indian immigration. Even though the number of students migrating to America for educational purposes was stunted, Indian American immigrants still sought educational opportunities when given the chance ([7], p. 3).

#### **3. Anti-Asian sentiment**

With the rise of hostilities toward Catholics, Orthodox Christians, and Jews who had immigrated to America from eastern and southern Europe, provoking strong xenophobic and nativist hostilities, South Asians also attracted this hostility as well. Fewer than 5000 of them lived in the United States in 1920. This was largely the by-product of them being seen as competitive labor, willing to do local jobs for less pay, and partly because of rampant racism and anti-Asian sentiment.

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

6% of the 43.3 million foreign born population ([2], p. 1).<sup>2</sup>

Indians the second largest immigrant group after Mexicans, who account for almost

These numbers tell only half of the story. Not only are these migrants doing well, they are inclined to stay connected with their homeland through investments, philanthropy, and personal involvement. For most emigrants who have traveled from India to other parts of the world, they see it as their obligation and a welcome responsibility. The Indian diaspora has established countless highly organized, well-funded, and professionally managed outreach groups for Indian immigrants. These organizations address a broad range of issues and take on many different forms, include philanthropic projects to improve health and education in India, advocacy organizations business and professional networks, media outlets, and societies for the promotion of

Studies of Indian migrants to the United States are often relegated to the field of "third world" or "developing nations" studies. However, given the relative success of these immigrants, they must now be understood in the same context as that of

Asian Indians are by far the richest and most educated ethnic group in one of the richest and most powerful nations in the world. They are disproportionately employed in high-status, high-skill professions. Their median household income is nearly twice as high as that of white households in the US, and they attain graduate and professional degrees at nearly four times higher than whites. They furnish over 10% of the labor force in computer-related and many other technical fields. These successes have also led to them to the boardrooms and executive offices of some of the most iconic US corporations, including Microsoft, Google, Adobe, PepsiCo, MasterCard, and Citibank. It can be argued they have become a model minority in America since Indian Americans have some of the lowest rates of poverty, incar-

The earliest recorded Indian emigrant to the United States was from Madras, who traveled to Massachusetts in 1790. A number of Indians were brought to the United States by seafaring Captains who worked for the East India Company to serve in their households as servants. Only a trickle of other Indian merchants, seaman, travelers, and missionaries followed, amounting to a total population of less than a 1000 by 1900 ([4], p. 3). Many of these transplants were born in British-ruled in India after having either completed their military service or jumped ship in port ([5], p. 2). By 1910, the number of Indian immigrants slowly rose to 3000, having settled on the Pacific Coast as agricultural workers. Many were Sikhs from Punjab seeking better fortunes in the West. Additional immigrants would come and work on the Western Pacific railroad and take employment in the lumber mills of Washington

<sup>1</sup> In 1907 there were less than 4000 Asian Indians living in America. The first anti-immigration law was passed in 1882, The Chinese Exclusion Act. In 1913, California passed the Alien Land law, mainly targeting Japanese immigrants, after California's attorney general also barred Indians from owning property in the state. The "Hindu invasion" as it was called contributed greatly to many stereotypes and various

<sup>2</sup> The United States is the third most popular destination for Indian emigrants worldwide, after the United Arab Emirates and Pakistan. Other top destinations include Saudi Arabia, Kuwait, Oman, and the

early Western European, East Asian, and recent West African migrants.

ceration, divorce, and reliance on public welfare in the nation ([3], p. x).

This makes foreign born

Indian Americans, or 1% of the total US population.1

Indian culture, language, and religion.

**2. In the beginning**

State ([4], p. 3).

forms of discrimination.

United Kingdom.

**98**

<sup>3</sup> The use of "Hindu" as a pejorative label for Indian Americans has historical antecedents in the United States and Canada and can be traced to the arrival of the first wave of Indian immigrants in Washington state and later California in the early twentieth century.

<sup>4</sup> An excellent example of an Indian immigrant who took advantage of educational opportunities in America would be Bhimrao Ramji Ambedkar, the future Dalit icon and architect of the Indian constitution, attended Columbia University as a PhD student, in New York City between 1913 and 1916.

These sentiments were the strongest on the West Coast as Indian Americans soon became the newest Asian immigrant group to be targeted by the Asiatic Exclusion League, a San Francisco-based group that successfully pressured immigration officials to deny admission to Indian immigrants by describing "Hindus" as enslaved, effeminate, caste-ridden, and degraded ([6], p. 7). This effort by the Asiatic Exclusion League contributed greatly to xenophobic and racist attitudes directed to East Indians on the West Coast and inspired legislative initiatives to restrict their immigration. Considered the "new menace" by legislators, they were the target of the immigration restriction law of 1917 which led to an "Asiatic barred zone" and mass deportations [6].5 It is estimated that some 1700 Indians were deported and 1400 left voluntarily.

These anti-Asian sentiments historically were rooted in the backlash associated with the Fourteenth Amendment passed shortly after the Civil War. This Amendment extended citizenship to all African Americans and to anyone born in the United States, including children of Indians and other immigrants. However, only white immigrants could become "naturalized"—granted US citizenship after migrating to the country and fulfilling a set of eligibility criteria. For the next 50 years, very few foreign-born Indian immigrants had become US citizens by exploiting ambiguities in the pseudoscientific race theories of the time, by claiming "north Indian Aryan" ethnicity and hence membership among Caucasians and "free whites." This loophole was closed for them in 1923 with the passage of the important US Supreme Court ruling.

In *United States vs. Bhaga Singh Thind (1923)*, the High Court ruled that while Indians may be Caucasian, they were not white "in the understanding of the common man," and that this prevailing view would be backed by the law. According to *The Other One Percent* authors, following the judgment the US government took away the right to naturalization from Indian Americans, and even revoked the citizenship of these who had been already naturalized. Sadly, this ruling even took away citizenship from those Indian Americans who had served in the US military ([5], p. 2).

This ruling and subsequent application greatly impacted the daily lives of many naturalized Indian American citizens. They were shut out of white-only schools, swimming pools, and barbershops. White American women who had married Indian men lost their citizenship, becoming stateless in their own country. In turn, this led to many couples not being allowed to marry due to statutes banning marriage between white people and non-white people. Congress went one step further by passing the Immigration Act of 1924, which instituted race-based quotas for immigrants and entirely banned the immigration of Indians as well. In the face of this discrimination and limited opportunities in the United States, many Indians returned to India ([5], p. 3).

After two decades, the Indian population in the United States had reached an all-time low after steady growth prior to 1924 ([4], p. 3).6 Not only were the numbers low in relation to the general population but so was their educational attainment, as they ranked the lowest among all racial and ethnic groups. However, it would soon start to change as the US government relaxed its ban on Indian immigration to the United States and more economic opportunities opened up for them. The population

**101**

*Journey to America: South Asian Diaspora Migration to the United States (1965–2015)*

of Indian Americans would grow steadily by a few hundred, for the next decade with many of them coming from Gujarat, India, and relocating to northern California, mobilizing their caste and kin networks. By 1960, there were over 13,000 Indian Americans in the United States, and their numbers were growing steadily.

By far, the biggest boom to increasing Asian Indian migration to the United States was the passage of the US Immigration and Nationality Act of 1965, which scrapped the old immigration system completely. This law replaced the old quota system established in the 1920s based on racial and national traits favoring the Global South and Europeans over others, with a system that gave preference to immigrants with specific, in-demand skills in the United States, as well as those who already had family members in the country or who were fleeing

The passage of the Immigration and Naturalization Act of 1965 opened up the possibility for larger-scale immigration from Asia. This important legislation laid down the legal foundation for future immigration to the United States. The act was significant in two important ways: it abolished discrimination based on race and nation of origin for the purposes of admission and created three major categories—family reunification, professional skills, and refugee status ([8], p. 26). These reforms would remain the primary basis for immigration policy the next 25 years. As some critics would charge, the Emma Lazarus' mantra "Give me your tired, your poor, your huddled masses" was no longer applicable as this new immigration bill actively recruited a special population to come to America. It was replaced by the

The change to the old immigration system was largely attributed to two forces going in the United States in the early 1960s. The first was a shift driven by progressive ideas about racial equality advanced by the US civil rights movement, which helped remove the bias in early immigration policies that favored white European immigrants. The second was largely attributed to the Cold War rivalry between the United States and the Soviet Union. The United States, to accelerate its national economic growth, sought out highly skilled workers particularly in technical fields. This in turn led to a boom for Indian immigrants who possessed many of the skills needed to fuel this growth. As the authors of *The Other One Percent* contend, the story of Asian Indian migration to the United States after 1965 is largely one of selection ([8], p. xii). Great emphasis was placed in allowing immigrants to come to America who had something to offer in way of technical skills and services that could directly benefit the American economy and help the government wage the Cold War. All told, post-1965 South Asian immigration was largely dominated by high educated and skilled professions who were able to circumvent earlier episodes of exclusion, racial hostility, and denial of citizenship shown other Asian immigrants' peasants and laborers who had immigrated earlier

The post-1965 immigration of Indians coming from India to America is identified by three classifications. The first group called the *Early Movers* (from

<sup>7</sup> While major emphasis was placed in encouraging immigrants to come to America who had backgrounds and skills in high technology related to waging the Cold War, the need for more health care professionals to meet the demands of President Lyndon B. Johnson's Great Society. These demands included staffing programs such as Medicaid and Medicare with additional doctors nurses.

*DOI: http://dx.doi.org/10.5772/intechopen.88118*

maxim "give me your brightest and best."

to the United States ([8], p. 20).

**4. Post-1965 immigration**

persecution.7

<sup>5</sup> While many Asian Indians were deported or left voluntarily, others immigrated to the United States illegally through Mexico.

<sup>6</sup> Bowing to pressures from west coast laborers who contested unlimited immigration from Asia was hurting their employment and economic opportunities, the US Congress passed exclusion laws in 1917 and 1924 which brought Indian immigration to a standstill. It was not until 1946 that Asian quotas were relaxed allowing over 6000 Indians to enter the US between 1946 and 1965.

of Indian Americans would grow steadily by a few hundred, for the next decade with many of them coming from Gujarat, India, and relocating to northern California, mobilizing their caste and kin networks. By 1960, there were over 13,000 Indian Americans in the United States, and their numbers were growing steadily.

### **4. Post-1965 immigration**

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

zone" and mass deportations [6].5

deported and 1400 left voluntarily.

US Supreme Court ruling.

returned to India ([5], p. 3).

illegally through Mexico.

These sentiments were the strongest on the West Coast as Indian Americans soon became the newest Asian immigrant group to be targeted by the Asiatic Exclusion League, a San Francisco-based group that successfully pressured immigration officials to deny admission to Indian immigrants by describing "Hindus" as enslaved, effeminate, caste-ridden, and degraded ([6], p. 7). This effort by the Asiatic Exclusion League contributed greatly to xenophobic and racist attitudes directed to East Indians on the West Coast and inspired legislative initiatives to restrict their immigration. Considered the "new menace" by legislators, they were the target of the immigration restriction law of 1917 which led to an "Asiatic barred

These anti-Asian sentiments historically were rooted in the backlash associated with the Fourteenth Amendment passed shortly after the Civil War. This Amendment extended citizenship to all African Americans and to anyone born in the United States, including children of Indians and other immigrants. However, only white immigrants could become "naturalized"—granted US citizenship after migrating to the country and fulfilling a set of eligibility criteria. For the next 50 years, very few foreign-born Indian immigrants had become US citizens by exploiting ambiguities in the pseudoscientific race theories of the time, by claiming "north Indian Aryan" ethnicity and hence membership among Caucasians and "free whites." This loophole was closed for them in 1923 with the passage of the important

In *United States vs. Bhaga Singh Thind (1923)*, the High Court ruled that while Indians may be Caucasian, they were not white "in the understanding of the common man," and that this prevailing view would be backed by the law. According to *The Other One Percent* authors, following the judgment the US government took away the right to naturalization from Indian Americans, and even revoked the citizenship of these who had been already naturalized. Sadly, this ruling even took away citizenship from those Indian Americans who had served in the US military ([5], p. 2).

This ruling and subsequent application greatly impacted the daily lives of many naturalized Indian American citizens. They were shut out of white-only schools, swimming pools, and barbershops. White American women who had married Indian men lost their citizenship, becoming stateless in their own country. In turn, this led to many couples not being allowed to marry due to statutes banning marriage between white people and non-white people. Congress went one step further by passing the Immigration Act of 1924, which instituted race-based quotas for immigrants and entirely banned the immigration of Indians as well. In the face of this discrimination and limited opportunities in the United States, many Indians

After two decades, the Indian population in the United States had reached an

low in relation to the general population but so was their educational attainment, as they ranked the lowest among all racial and ethnic groups. However, it would soon start to change as the US government relaxed its ban on Indian immigration to the United States and more economic opportunities opened up for them. The population

<sup>5</sup> While many Asian Indians were deported or left voluntarily, others immigrated to the United States

<sup>6</sup> Bowing to pressures from west coast laborers who contested unlimited immigration from Asia was hurting their employment and economic opportunities, the US Congress passed exclusion laws in 1917 and 1924 which brought Indian immigration to a standstill. It was not until 1946 that Asian quotas were

Not only were the numbers

all-time low after steady growth prior to 1924 ([4], p. 3).6

relaxed allowing over 6000 Indians to enter the US between 1946 and 1965.

It is estimated that some 1700 Indians were

**100**

By far, the biggest boom to increasing Asian Indian migration to the United States was the passage of the US Immigration and Nationality Act of 1965, which scrapped the old immigration system completely. This law replaced the old quota system established in the 1920s based on racial and national traits favoring the Global South and Europeans over others, with a system that gave preference to immigrants with specific, in-demand skills in the United States, as well as those who already had family members in the country or who were fleeing persecution.7

The passage of the Immigration and Naturalization Act of 1965 opened up the possibility for larger-scale immigration from Asia. This important legislation laid down the legal foundation for future immigration to the United States. The act was significant in two important ways: it abolished discrimination based on race and nation of origin for the purposes of admission and created three major categories—family reunification, professional skills, and refugee status ([8], p. 26). These reforms would remain the primary basis for immigration policy the next 25 years. As some critics would charge, the Emma Lazarus' mantra "Give me your tired, your poor, your huddled masses" was no longer applicable as this new immigration bill actively recruited a special population to come to America. It was replaced by the maxim "give me your brightest and best."

The change to the old immigration system was largely attributed to two forces going in the United States in the early 1960s. The first was a shift driven by progressive ideas about racial equality advanced by the US civil rights movement, which helped remove the bias in early immigration policies that favored white European immigrants. The second was largely attributed to the Cold War rivalry between the United States and the Soviet Union. The United States, to accelerate its national economic growth, sought out highly skilled workers particularly in technical fields. This in turn led to a boom for Indian immigrants who possessed many of the skills needed to fuel this growth. As the authors of *The Other One Percent* contend, the story of Asian Indian migration to the United States after 1965 is largely one of selection ([8], p. xii). Great emphasis was placed in allowing immigrants to come to America who had something to offer in way of technical skills and services that could directly benefit the American economy and help the government wage the Cold War. All told, post-1965 South Asian immigration was largely dominated by high educated and skilled professions who were able to circumvent earlier episodes of exclusion, racial hostility, and denial of citizenship shown other Asian immigrants' peasants and laborers who had immigrated earlier to the United States ([8], p. 20).

The post-1965 immigration of Indians coming from India to America is identified by three classifications. The first group called the *Early Movers* (from

<sup>7</sup> While major emphasis was placed in encouraging immigrants to come to America who had backgrounds and skills in high technology related to waging the Cold War, the need for more health care professionals to meet the demands of President Lyndon B. Johnson's Great Society. These demands included staffing programs such as Medicaid and Medicare with additional doctors nurses.

the mid-1960s to the late 1970s) was highly educated, with over 45% of them having acquired professional degrees in medicine, engineering, and computer science (now called STEM fields). There was greater variance in the human capital of the *Families cohorts*, beginning in 1980s to the mid-1990s, as family unification was the driving force for even higher numbers of Indians migrating to American from India. Most recent immigration from India constitutes what the authors of The Other One Percent call *The IT Generation*, a group that benefit greatly from the high demand of the information technology sector or other science and technology (STEM) fields. This group migrated in much higher numbers—at five times the rate of the Early Movers and twice the rate of The Families ([8], p. xii).

The authors of *The Other One Percent* also argue that this selection represents a form of "triple selection" that would in turn create unique population of recent Indian immigrants to the United States ([8], p. xii).8 The first selection is the byproduct of India's social hierarchies and historical discrimination selected certain groups like the Brahmins and other "high" or "dominant" castes for education, ranging from primary levels to college ([5], p. 3).9 The second one is the rationing of the seats in higher education that created a high stakes, examination-based selection from within the already select group. Third, the US immigration system selected within this doubly selected group when it favored skills, especially skills in engineering and technology, as the basis for awarding employment and students. Ultimately, the majority of Asian Indians who came to the United States after 1965, were triple selected, which benefitted both the immigrants who were trying to improve their lot in life and the United States who needed their technical expertise. This talent pool was comprised almost wholly of men from elite castes and classes, who were only too eager to escape from a country that could not offer them enough opportunity to apply their skills. All told, the demands of the US labor market were able to tap into a ready supply of high technical and skilled candidates. Other subgroups coming to America from India included entrepreneurial spirits who started out as taxi drivers in New York or motel owners of Gujarati origins who would eventually make into the American middle class ([3], p. xiii).

Another factor contributing greatly to mass migration of highly skilled, educated, and talented Indians to America was distance. Distance kept Indians with low human capital from entering the United States illegally in very large numbers (in contrast to illegal immigrants from proximate locations like Mexico and Central America). Another key factor in this immigration was India's democracy, meaning that a vast majority of those who left did so voluntarily, unlike many other migrants from other developing countries who came as refugees or asylum seekers escaping political chaos or persecution ([3], p. xiii). These characteristics, in combination with the very high volume of skilled labor immigration after 1995, made Indian immigrants "outliers" in the degree to which higher education, especially

**103**

*Journey to America: South Asian Diaspora Migration to the United States (1965–2015)*

in technical fields, and the US labor market played a larger role relative to other

to America center on: education (Indian-born population are three times more educated than that in the host country and nine times more educated than the home country's population), class and caste (favoring large margins of upper and dominant classes and castes in India), profession (engineering, IT, and health care), and both the region of origin (Gujarati and Punjabi in the first and second, and Telugu and Tamil in the third phase), and region of settlement (in specific metropolitan clusters in and around New York City, the San Francisco Bay Area, Chicago,

Another contributing factor to the selection of Indians and their success in America is their higher proclivity to live in married-couple households, more than any other major immigrant group. This aids in the advantage of keeping the Indian-American poverty-level low (under 5%) and family income high (the highest in the United States) ([3], p. xiii). In addition, there exists a great deal social capital among highly successful ethnic groups, such as linguistic/professional networks like Gujarati entrepreneurs in the hotel industry, Telugu and Tamil workers in IT industry, IIT engineers, Malayali nurses, Bengali academics, etc. Some low-income groups did exist, such as Punjabi taxi drivers in New York, where they did manage to create some social capital (bonding). Even in cases were kinship or linguistic affiliation was lacking, doctors and engineers of Indian descent still managed to organize and prosper by creating bridging social networks and capital ([3], p. xiv). The rapid growth of Indian immigrant communities to the United States would

have remained a hard-to-access phenomenon had it not been for the 1980 US census, which counted Asian as a separate group for the very first time ([9], p. 3).11 In the new categorization, Indians achieved a record growth rate of 125% between 1980 and 1990, representing one of the fastest growing immigrant groups under the Asian American umbrella. The population totaled over 815,447 in 1990 ([4], p. 1). About one-third were located in the northeast, and the remaining two-thirds were

The demographic characteristics of Indians in the 1990 census held that this immigrant group was vibrant, young (28.9 years old), married (90%), some-what monied (49K), and professional. They were found to have taken up employment in the fields of science, medicine, engineering, commerce, and real estate prospectively [4]. Compare these figures to their skilled relatives who came in the 80s, who largely moved into nonprofessional fields such retail-trade, food, and service industries [4]. On the heels of the more affluent and skilled Indian immigrants came newer arrivals who possessed fewer technical and speaking skills. These more recent immigrants, living for the most part on the fringes of society, lacked English skills, basic job skills, and needed remedial education. This group was largely as unsuccessful as other Indian immigrant groups which in turn led to economic stratifica-

<sup>10</sup> The Immigration Act of 1990 created a temporary visa category-known as H-1B-for skilled workers, with an annual cap of 65,000, and allowed these workers to petition for permanent resident status during their stay in the United States. Subsequent changes to this program included granting universities and research laboratories permission to issue H-1B beyond the annual limits. The annual cap changed to 195,000 in 2001, and then increased to 250,000 in 2003. These increases contributed greatly to a spike in Asian Indian immigrant to America in the next two decades. The H-1B visa program has been a hot-bed

<sup>11</sup> This change was the result of intense Indian lobbying to have a separate group identity established as

All told, the factors that came together to encourage so many Indians to migrate

*DOI: http://dx.doi.org/10.5772/intechopen.88118*

selection mechanisms of US immigration policy.10

Washington, D.C., Houston, and Dallas) ([3], p. xiii).

situated in the South, West, and Midwest [4].

tion with in the Indian American community [4].

of contention and debate the last two decades at various level of government.

"Asian Indian" within the "racial" category "Asian and Pacific Islanders."

<sup>8</sup> The authors of *The Other One Percent* argue that Indian immigrants enjoyed many suitable characteristics that allowed them to be not only allowed to leave India but also suitable for admission to the United States. These characteristics include age, gender, education, religion, and language. They also note that the Indians also possessed other notable and non-observable traits as well (such as ambition, grit, and luck).

<sup>9</sup> The Indian government invested heavily in English-speaking, higher education in science and technology. In places such as the Indian Institutes of Technology, admissions were mostly fed by urban, English-speaking private schools, even while grossly neglecting public primary education. As a result, this system produced tens of thousands of engineers at the same time that the majority of its citizens were functionally illiterate.

#### *Journey to America: South Asian Diaspora Migration to the United States (1965–2015) DOI: http://dx.doi.org/10.5772/intechopen.88118*

in technical fields, and the US labor market played a larger role relative to other selection mechanisms of US immigration policy.10

All told, the factors that came together to encourage so many Indians to migrate to America center on: education (Indian-born population are three times more educated than that in the host country and nine times more educated than the home country's population), class and caste (favoring large margins of upper and dominant classes and castes in India), profession (engineering, IT, and health care), and both the region of origin (Gujarati and Punjabi in the first and second, and Telugu and Tamil in the third phase), and region of settlement (in specific metropolitan clusters in and around New York City, the San Francisco Bay Area, Chicago, Washington, D.C., Houston, and Dallas) ([3], p. xiii).

Another contributing factor to the selection of Indians and their success in America is their higher proclivity to live in married-couple households, more than any other major immigrant group. This aids in the advantage of keeping the Indian-American poverty-level low (under 5%) and family income high (the highest in the United States) ([3], p. xiii). In addition, there exists a great deal social capital among highly successful ethnic groups, such as linguistic/professional networks like Gujarati entrepreneurs in the hotel industry, Telugu and Tamil workers in IT industry, IIT engineers, Malayali nurses, Bengali academics, etc. Some low-income groups did exist, such as Punjabi taxi drivers in New York, where they did manage to create some social capital (bonding). Even in cases were kinship or linguistic affiliation was lacking, doctors and engineers of Indian descent still managed to organize and prosper by creating bridging social networks and capital ([3], p. xiv).

The rapid growth of Indian immigrant communities to the United States would have remained a hard-to-access phenomenon had it not been for the 1980 US census, which counted Asian as a separate group for the very first time ([9], p. 3).11 In the new categorization, Indians achieved a record growth rate of 125% between 1980 and 1990, representing one of the fastest growing immigrant groups under the Asian American umbrella. The population totaled over 815,447 in 1990 ([4], p. 1). About one-third were located in the northeast, and the remaining two-thirds were situated in the South, West, and Midwest [4].

The demographic characteristics of Indians in the 1990 census held that this immigrant group was vibrant, young (28.9 years old), married (90%), some-what monied (49K), and professional. They were found to have taken up employment in the fields of science, medicine, engineering, commerce, and real estate prospectively [4]. Compare these figures to their skilled relatives who came in the 80s, who largely moved into nonprofessional fields such retail-trade, food, and service industries [4].

On the heels of the more affluent and skilled Indian immigrants came newer arrivals who possessed fewer technical and speaking skills. These more recent immigrants, living for the most part on the fringes of society, lacked English skills, basic job skills, and needed remedial education. This group was largely as unsuccessful as other Indian immigrant groups which in turn led to economic stratification with in the Indian American community [4].

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

Indian immigrants to the United States ([8], p. xii).8

ranging from primary levels to college ([5], p. 3).9

of The Families ([8], p. xii).

class ([3], p. xiii).

the mid-1960s to the late 1970s) was highly educated, with over 45% of them having acquired professional degrees in medicine, engineering, and computer science (now called STEM fields). There was greater variance in the human capital of the *Families cohorts*, beginning in 1980s to the mid-1990s, as family unification was the driving force for even higher numbers of Indians migrating to American from India. Most recent immigration from India constitutes what the authors of The Other One Percent call *The IT Generation*, a group that benefit greatly from the high demand of the information technology sector or other science and technology (STEM) fields. This group migrated in much higher numbers—at five times the rate of the Early Movers and twice the rate

The authors of *The Other One Percent* also argue that this selection represents a form of "triple selection" that would in turn create unique population of recent

product of India's social hierarchies and historical discrimination selected certain groups like the Brahmins and other "high" or "dominant" castes for education,

ing of the seats in higher education that created a high stakes, examination-based selection from within the already select group. Third, the US immigration system selected within this doubly selected group when it favored skills, especially skills in engineering and technology, as the basis for awarding employment and students. Ultimately, the majority of Asian Indians who came to the United States after 1965, were triple selected, which benefitted both the immigrants who were trying to improve their lot in life and the United States who needed their technical expertise. This talent pool was comprised almost wholly of men from elite castes and classes, who were only too eager to escape from a country that could not offer them enough opportunity to apply their skills. All told, the demands of the US labor market were able to tap into a ready supply of high technical and skilled candidates. Other subgroups coming to America from India included entrepreneurial spirits who started out as taxi drivers in New York or motel owners of Gujarati origins who would eventually make into the American middle

Another factor contributing greatly to mass migration of highly skilled, educated, and talented Indians to America was distance. Distance kept Indians with low human capital from entering the United States illegally in very large numbers (in contrast to illegal immigrants from proximate locations like Mexico and Central America). Another key factor in this immigration was India's democracy, meaning that a vast majority of those who left did so voluntarily, unlike many other migrants from other developing countries who came as refugees or asylum seekers escaping political chaos or persecution ([3], p. xiii). These characteristics, in combination with the very high volume of skilled labor immigration after 1995, made Indian immigrants "outliers" in the degree to which higher education, especially

<sup>8</sup> The authors of *The Other One Percent* argue that Indian immigrants enjoyed many suitable characteristics that allowed them to be not only allowed to leave India but also suitable for admission to the United States. These characteristics include age, gender, education, religion, and language. They also note that the Indians also possessed other notable and non-observable traits as well (such as ambition, grit, and luck). <sup>9</sup> The Indian government invested heavily in English-speaking, higher education in science and technology. In places such as the Indian Institutes of Technology, admissions were mostly fed by urban, English-speaking private schools, even while grossly neglecting public primary education. As a result, this system produced tens of thousands of engineers at the same time that the majority of its citizens

The first selection is the by-

The second one is the ration-

**102**

were functionally illiterate.

<sup>10</sup> The Immigration Act of 1990 created a temporary visa category-known as H-1B-for skilled workers, with an annual cap of 65,000, and allowed these workers to petition for permanent resident status during their stay in the United States. Subsequent changes to this program included granting universities and research laboratories permission to issue H-1B beyond the annual limits. The annual cap changed to 195,000 in 2001, and then increased to 250,000 in 2003. These increases contributed greatly to a spike in Asian Indian immigrant to America in the next two decades. The H-1B visa program has been a hot-bed of contention and debate the last two decades at various level of government.

<sup>11</sup> This change was the result of intense Indian lobbying to have a separate group identity established as "Asian Indian" within the "racial" category "Asian and Pacific Islanders."

Indians who immigrated to America came from every state in India, each with own distinct language and cultural heritage. They also belong to many religious faiths including Hinduism, Islam, Sikhism, Jainism, Christianity, and Zoroastrianism. Not always hailing directly from India, many also arrived from England, Canada, South Africa, Tanzania, Fiji, Guyana, and Trinidad ([4], p. 3). More than half of immigrants from India resided in five states: California (20%), New Jersey (11%), Texas (9%), and New York and Illinois (7% each). The metropolitan areas with the most Indian immigrants were the greater New York, Chicago, San Jose, and San Francisco Areas. These four metro areas were home to one-third of Indians in the United States ([2], p. 2).

The fact that Asian Indians come from such vast social and cultural diversity in India, with 33 major languages and some 1500 minor ones, seven major religions including a mélange of six major ethnic groups finding homogeneous groups in American has led to a largely heterogeneous existence in America. The absence of homogeneity among Asian Indians is reflected in their emigration and settlement patterns not only in the United States but also the world. All told, the heterogeneity of Asian Indian culture and customs has prevented the emergence of pigeonholed Indian settlements and Indian towns in the United States ([1], p. 133).

Unlike their pre-1965 immigrant Asian Indian predecessors who were largely agricultural and unskilled laborers, post-1965 Asian Indian immigrants enjoy a common bond related to their backgrounds in education and social-economic classes. The fact that they came from mercantile and professional classes, their status of being middle-class secured afforded them to some degree homogeneity existence professionally, while living heterogeneously. While these two groups do not necessarily enjoy the same degree of socio-economic status or success, they have both sought the vestiges of the American dream as most immigrants do coming to America: a nice home, a good job, excellent schools, and safe neighborhoods. Asian Indians also cherished being a country that celebrated democratic and pluralistic ways, mores, and values.

Asian Indian immigrant groups while they have transformed themselves most in the workplace by adopting American clothes, manners, competitive work habits, and "behaving like Americans," they have on the other hand managed to remain steadfast and strengthened within the home by maintaining vestiges of their diverse ethnic culture: respective religious, social, cultural, and dietary habits. They buy ethnic goods and services needed to maintain their desired lifestyle and insulate their ethnic lifestyles within their homes and communities, away from the scrutiny of the larger society. This has in turn allowed many Asian Indian immigrants and their descendants to transmit Indian culture within their primary groups such as family, cliques of close friends, and voluntary organizations.

Another way that Asian Indian immigrants to America have maintained their cultural identity is by preserving ties to their extended families in India. This is accomplished through financial contributions and almost yearly visits. This effort serves as a duality of sorts, maintaining ties to their homeland, while also embracing America as their new homeland. The financial contributions that are made by these immigrants while although considered merger by some make a great difference in the economic status and well-being of their families back home in India.

Another important facet of keeping ties to their homeland is networking. The most powerful tool is the spread of information through word of mouth. Asia Indians, even though scattered all over the United States and quite heterogeneous in their background, keep close contact with relatives and friends by oral and written discourse by sharing common interests. This effort is promoted by a plethora of news outlets as well as modern technology. There exist several Asian Indian

**105**

*Journey to America: South Asian Diaspora Migration to the United States (1965–2015)*

newspapers (*India Abroad*), glossy monthly magazines with political, cultural, religious, and business features. In addition, local cable outlets carry cable programing from news outlets such as *TV Asia*, *Eye on Asia*, and *This is India*. In addition to having access to Old World home channels along with American ones, they also have access to Bombay and Bollywood movies and other cultural programs. Notwithstanding the linguistic, cultural, religious, and ethnic heterogeneity among first and second generation Asian Indian immigrants since 1965, the vast majority of them share come common principles and perspectives. These include valuing immigration to America as an economic gain, saving their earnings for education and retirement, and overcoming discrimination and prejudice by tolerance and resolve instead of direct confrontation. More importantly, Asian Indians celebrate, respect, and admire their economic relative economic success and high-

Within the context of Asian Indian immigrants who have come to America in recent decades, their still resides some vestiges of the well-established gender roles and expectations. This is especially true when recent immigrants elect to bring older family members from India to America. Herein lays, the culprit for tensions within the family when it comes to joint and extended family obligations, which tended to be conservative, backed by female-subordination. Whereas in India, there is a strict code of conduct for men and women, in America, both men and women have undergone a metamorphous of sorts. For example, Indian women had found life in America much easier with regard to material comforts and conveniences. Not to mention better opportunities to work outside the home and make financial contributions to not only to the family, but toward their own development as well. All told, this new freedom and the opportunity to maximize economic security and family income with dignity is transcends economic, politi-

The success of Asian Indians in migrating and assimilating to America culture while maintain cultural and ethnic ties is keeping with the tradition of immigrates making the best out of their American experience. From their collective experiences abet with separating from their homeland, they continue to find ways to embrace the best that America has to offer, while maintain their cultural roots and identities as Asian Indians. Moreover, they have integrated themselves into a pluralistic society, which values competitiveness, achievement orientation, equalitarianism, and objective individualism in order to achieve success and contribute effectively

The emigrants of the Indian diaspora who ventured from India to America and other localities throughout the world represent an ongoing phenomenon heading in a pluralistic direction. The success of the Indian diaspora is one aspect of a complex story being moved by economic, political, and social forces largely driven by technology transfers, labor needs, and a collection of immigrants seeking a better life in foreign lands. While Indian immigrant populations in America have been largely successful in the arenas of income, educational attainment, and entrepreneurial endeavors for the last 100 years, it stands to reason that other venues of success are on the horizon. These include becoming successful political leaders, thinkers,

To better understand and appreciate the successes and the potentials of future endeavors, it serves well to seek answers to the following questions: what are the

historians, artists, writers, activists, musicians, and lawyers.

*DOI: http://dx.doi.org/10.5772/intechopen.88118*

standing professional talents parochial.

cal, and cultural boundaries.

into a larger society.

**5. Conclusion**

#### *Journey to America: South Asian Diaspora Migration to the United States (1965–2015) DOI: http://dx.doi.org/10.5772/intechopen.88118*

newspapers (*India Abroad*), glossy monthly magazines with political, cultural, religious, and business features. In addition, local cable outlets carry cable programing from news outlets such as *TV Asia*, *Eye on Asia*, and *This is India*. In addition to having access to Old World home channels along with American ones, they also have access to Bombay and Bollywood movies and other cultural programs.

Notwithstanding the linguistic, cultural, religious, and ethnic heterogeneity among first and second generation Asian Indian immigrants since 1965, the vast majority of them share come common principles and perspectives. These include valuing immigration to America as an economic gain, saving their earnings for education and retirement, and overcoming discrimination and prejudice by tolerance and resolve instead of direct confrontation. More importantly, Asian Indians celebrate, respect, and admire their economic relative economic success and highstanding professional talents parochial.

Within the context of Asian Indian immigrants who have come to America in recent decades, their still resides some vestiges of the well-established gender roles and expectations. This is especially true when recent immigrants elect to bring older family members from India to America. Herein lays, the culprit for tensions within the family when it comes to joint and extended family obligations, which tended to be conservative, backed by female-subordination. Whereas in India, there is a strict code of conduct for men and women, in America, both men and women have undergone a metamorphous of sorts. For example, Indian women had found life in America much easier with regard to material comforts and conveniences. Not to mention better opportunities to work outside the home and make financial contributions to not only to the family, but toward their own development as well. All told, this new freedom and the opportunity to maximize economic security and family income with dignity is transcends economic, political, and cultural boundaries.

The success of Asian Indians in migrating and assimilating to America culture while maintain cultural and ethnic ties is keeping with the tradition of immigrates making the best out of their American experience. From their collective experiences abet with separating from their homeland, they continue to find ways to embrace the best that America has to offer, while maintain their cultural roots and identities as Asian Indians. Moreover, they have integrated themselves into a pluralistic society, which values competitiveness, achievement orientation, equalitarianism, and objective individualism in order to achieve success and contribute effectively into a larger society.

#### **5. Conclusion**

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

of Indians in the United States ([2], p. 2).

ways, mores, and values.

Indians who immigrated to America came from every state in India, each with own distinct language and cultural heritage. They also belong to many religious faiths including Hinduism, Islam, Sikhism, Jainism, Christianity, and Zoroastrianism. Not always hailing directly from India, many also arrived from England, Canada, South Africa, Tanzania, Fiji, Guyana, and Trinidad ([4], p. 3). More than half of immigrants from India resided in five states: California (20%), New Jersey (11%), Texas (9%), and New York and Illinois (7% each). The metropolitan areas with the most Indian immigrants were the greater New York, Chicago, San Jose, and San Francisco Areas. These four metro areas were home to one-third

The fact that Asian Indians come from such vast social and cultural diversity in India, with 33 major languages and some 1500 minor ones, seven major religions including a mélange of six major ethnic groups finding homogeneous groups in American has led to a largely heterogeneous existence in America. The absence of homogeneity among Asian Indians is reflected in their emigration and settlement patterns not only in the United States but also the world. All told, the heterogeneity of Asian Indian culture and customs has prevented the emergence of pigeonholed

Unlike their pre-1965 immigrant Asian Indian predecessors who were largely agricultural and unskilled laborers, post-1965 Asian Indian immigrants enjoy a common bond related to their backgrounds in education and social-economic classes. The fact that they came from mercantile and professional classes, their status of being middle-class secured afforded them to some degree homogeneity existence professionally, while living heterogeneously. While these two groups do not necessarily enjoy the same degree of socio-economic status or success, they have both sought the vestiges of the American dream as most immigrants do coming to America: a nice home, a good job, excellent schools, and safe neighborhoods. Asian Indians also cherished being a country that celebrated democratic and pluralistic

Asian Indian immigrant groups while they have transformed themselves most in the workplace by adopting American clothes, manners, competitive work habits, and "behaving like Americans," they have on the other hand managed to remain steadfast and strengthened within the home by maintaining vestiges of their diverse ethnic culture: respective religious, social, cultural, and dietary habits. They buy ethnic goods and services needed to maintain their desired lifestyle and insulate their ethnic lifestyles within their homes and communities, away from the scrutiny of the larger society. This has in turn allowed many Asian Indian immigrants and their descendants to transmit Indian culture within their primary groups such as

Another way that Asian Indian immigrants to America have maintained their cultural identity is by preserving ties to their extended families in India. This is accomplished through financial contributions and almost yearly visits. This effort serves as a duality of sorts, maintaining ties to their homeland, while also embracing America as their new homeland. The financial contributions that are made by these immigrants while although considered merger by some make a great difference in the economic status and well-being of their families back home in India. Another important facet of keeping ties to their homeland is networking. The most powerful tool is the spread of information through word of mouth. Asia Indians, even though scattered all over the United States and quite heterogeneous in their background, keep close contact with relatives and friends by oral and written discourse by sharing common interests. This effort is promoted by a plethora of news outlets as well as modern technology. There exist several Asian Indian

Indian settlements and Indian towns in the United States ([1], p. 133).

family, cliques of close friends, and voluntary organizations.

**104**

The emigrants of the Indian diaspora who ventured from India to America and other localities throughout the world represent an ongoing phenomenon heading in a pluralistic direction. The success of the Indian diaspora is one aspect of a complex story being moved by economic, political, and social forces largely driven by technology transfers, labor needs, and a collection of immigrants seeking a better life in foreign lands. While Indian immigrant populations in America have been largely successful in the arenas of income, educational attainment, and entrepreneurial endeavors for the last 100 years, it stands to reason that other venues of success are on the horizon. These include becoming successful political leaders, thinkers, historians, artists, writers, activists, musicians, and lawyers.

To better understand and appreciate the successes and the potentials of future endeavors, it serves well to seek answers to the following questions: what are the

motivational origins of the Indian diaspora? What efforts cultivated this success? To what degree did they meet resistance and how did they handle it? More importantly, what connections do these successful immigrants have to their former homelands, and to what extent is their success in America helping their homeland?

The story of American history is in every respect the story of immigration. The Indian diaspora that traveled to the United States between 1820 and 2015 represents another success story in the long line of successful immigration by not only Europeans, but also peoples of Asian and African descent. What makes this effort unique is not why they came, but how they came: highly educated, technically skilled, and endowed with a will to succeed making them likely candidates to enter the middle and upper classes in a relatively short period of time.

#### **Author details**

John P. Williams University of North Texas, Denton, Texas, USA

\*Address all correspondence to: yoprofessor11@utdallas.edu

© 2019 The Author(s). Licensee IntechOpen. This chapter is distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/ by/3.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.

**107**

15, 2018]

Press; 2002

*Journey to America: South Asian Diaspora Migration to the United States (1965–2015)*

[8] Mishra S. Desis Divided: The Political

American, Being Indian: An Immigrant Community. New York City, Ithaca: Cornell University Press; 2002

Lives of South Asian Americans. Minneapolis: The University of

[9] Khandelwal MS. Becoming

Minnesota Press; 2016

*DOI: http://dx.doi.org/10.5772/intechopen.88118*

[1] Das, Sudipta. Loss or Gain? A Saga of Asian Indian Immigration and Experiences in America's Multi-Ethnic Mosaic, Race, Gender & Class Conference and Others (2002). Available from: http://www.jstor.org/ stable.41675023 [Accessed: June 10,

[2] Zong, Jie and Jeanne Batalova. Migration Policy Institute, Spotlight: Indian Immigration in the United States. 2017. Available from: https:// economictimes.indiatimes.com/nri/ visa-and-immigration/why-theindian-diaspora-in-the-us-matters/ articleshow/64157538.cms [Accessed:

[3] Chakravorty S, Kapur D, Singh N. The Other One Percent: Indians in America. Cambridge: Oxford University

[4] Rangaswamy P. Namaste America: Indian Immigrants in an American Metropolis. University Park: The Pennsylvania State University Press;

[5] Arora N. Political Reviews and Essays. Coming to America: The Making of the South Asian Diaspora in the United States. Caravan Magazine. October 2017. Available from: http:// www.caravanmagazine.in/reviewsessays/south-asian-diaspora-unitedstates [Accessed: June 26, 2018]

[6] Maira SM. Desis in the House: Indian American Youth Culture in New York City. Philadelphia: Temple University

[7] Desilver D. 5 Facts about Indian Americans. Pew Research Center; 2018. Available from: http://www.pewresearch.org/ fact-tank/2014/09/30/5-facts-aboutindian-americans/ [Accessed: August

**References**

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August 28, 2018]

Press; 2016

2000

*Journey to America: South Asian Diaspora Migration to the United States (1965–2015) DOI: http://dx.doi.org/10.5772/intechopen.88118*

#### **References**

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

motivational origins of the Indian diaspora? What efforts cultivated this success? To what degree did they meet resistance and how did they handle it? More importantly, what connections do these successful immigrants have to their former homelands,

The story of American history is in every respect the story of immigration. The Indian diaspora that traveled to the United States between 1820 and 2015 represents another success story in the long line of successful immigration by not only Europeans, but also peoples of Asian and African descent. What makes this effort unique is not why they came, but how they came: highly educated, technically skilled, and endowed with a will to succeed making them likely candidates to enter

and to what extent is their success in America helping their homeland?

the middle and upper classes in a relatively short period of time.

**106**

**Author details**

John P. Williams

University of North Texas, Denton, Texas, USA

provided the original work is properly cited.

\*Address all correspondence to: yoprofessor11@utdallas.edu

© 2019 The Author(s). Licensee IntechOpen. This chapter is distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/ by/3.0), which permits unrestricted use, distribution, and reproduction in any medium,

[1] Das, Sudipta. Loss or Gain? A Saga of Asian Indian Immigration and Experiences in America's Multi-Ethnic Mosaic, Race, Gender & Class Conference and Others (2002). Available from: http://www.jstor.org/ stable.41675023 [Accessed: June 10, 2019]

[2] Zong, Jie and Jeanne Batalova. Migration Policy Institute, Spotlight: Indian Immigration in the United States. 2017. Available from: https:// economictimes.indiatimes.com/nri/ visa-and-immigration/why-theindian-diaspora-in-the-us-matters/ articleshow/64157538.cms [Accessed: August 28, 2018]

[3] Chakravorty S, Kapur D, Singh N. The Other One Percent: Indians in America. Cambridge: Oxford University Press; 2016

[4] Rangaswamy P. Namaste America: Indian Immigrants in an American Metropolis. University Park: The Pennsylvania State University Press; 2000

[5] Arora N. Political Reviews and Essays. Coming to America: The Making of the South Asian Diaspora in the United States. Caravan Magazine. October 2017. Available from: http:// www.caravanmagazine.in/reviewsessays/south-asian-diaspora-unitedstates [Accessed: June 26, 2018]

[6] Maira SM. Desis in the House: Indian American Youth Culture in New York City. Philadelphia: Temple University Press; 2002

[7] Desilver D. 5 Facts about Indian Americans. Pew Research Center; 2018. Available from: http://www.pewresearch.org/ fact-tank/2014/09/30/5-facts-aboutindian-americans/ [Accessed: August 15, 2018]

[8] Mishra S. Desis Divided: The Political Lives of South Asian Americans. Minneapolis: The University of Minnesota Press; 2016

[9] Khandelwal MS. Becoming American, Being Indian: An Immigrant Community. New York City, Ithaca: Cornell University Press; 2002

**109**

Section 4

Australia

Section 4 Australia

**111**

this land' [3]*.*

sation in Australia.

**Chapter 7**

**Abstract**

*Clair Andersen*

lenges to their identity.

**1. Introduction**

**Keywords:** identity, health, education, resilience

*of living were all introduced.* ([1], p. 20)

these relationships for health and well-being.

Exploring Aboriginal Identity in

Australia and Building Resilience

This chapter will discuss the challenges faced by Aboriginal people seeking recognition of their identity as Indigenous Australians. It will explore government policies, their impact on identity formation and the ongoing impact of colonisation on education and health outcomes for Indigenous people in Australia. The issues raised will include historical and contemporary experiences as well personal values and attitudes. The strategies and programs introduced within educational settings as part of an inclusive practice regime will be highlighted. Aboriginal people have faced many challenges, and continue to do so in postcolonial times, including chal-

Sir William Deane, Governor-General, Inaugural Lingiari Lecture

*the past is never fully gone. It is absorbed into the present and the future. The present plight, in terms of health, employment, education, living conditions and self-esteem, of so many Aborigines must be acknowledged as largely flowing from what happened in the past (....) the new diseases, the alcohol and the new pressures* 

Australia's First peoples have survived the following common experiences, invasion, dispersal from their land as well as suffering and loss due to introduced diseases. It is important for all Australians both settlers and migrants to understand the enduring relationship of Aboriginal peoples to their Land and the importance of

deprived of their Land, our people are like Christians without souls, wandering aimlessly, people without a purpose' [2]; Auntie Jean Carter, Community Elder, states, 'We're not disposed people. We still walk this land. We still are the owners of

While Silas Roberts, the first chairman of the Northern Land Council said 'when

These comments are indicative of the continuing debate around the identity of Aboriginal people and their connection to land with the ongoing impact of coloni-

#### **Chapter 7**

### Exploring Aboriginal Identity in Australia and Building Resilience

*Clair Andersen*

#### **Abstract**

This chapter will discuss the challenges faced by Aboriginal people seeking recognition of their identity as Indigenous Australians. It will explore government policies, their impact on identity formation and the ongoing impact of colonisation on education and health outcomes for Indigenous people in Australia. The issues raised will include historical and contemporary experiences as well personal values and attitudes. The strategies and programs introduced within educational settings as part of an inclusive practice regime will be highlighted. Aboriginal people have faced many challenges, and continue to do so in postcolonial times, including challenges to their identity.

**Keywords:** identity, health, education, resilience

#### **1. Introduction**

Sir William Deane, Governor-General, Inaugural Lingiari Lecture

*the past is never fully gone. It is absorbed into the present and the future. The present plight, in terms of health, employment, education, living conditions and self-esteem, of so many Aborigines must be acknowledged as largely flowing from what happened in the past (....) the new diseases, the alcohol and the new pressures of living were all introduced.* ([1], p. 20)

Australia's First peoples have survived the following common experiences, invasion, dispersal from their land as well as suffering and loss due to introduced diseases. It is important for all Australians both settlers and migrants to understand the enduring relationship of Aboriginal peoples to their Land and the importance of these relationships for health and well-being.

While Silas Roberts, the first chairman of the Northern Land Council said 'when deprived of their Land, our people are like Christians without souls, wandering aimlessly, people without a purpose' [2]; Auntie Jean Carter, Community Elder, states, 'We're not disposed people. We still walk this land. We still are the owners of this land' [3]*.*

These comments are indicative of the continuing debate around the identity of Aboriginal people and their connection to land with the ongoing impact of colonisation in Australia.

#### **2. Who is indigenous in Australia?**

The current Australian definition of Indigeneity states that an Indigenous person is one who:


This definition developed by the Commonwealth Department of Aboriginal Affairs in the 1980s [4] is widely accepted within government departments, statutory bodies and institutions, but is sometimes contested by Aboriginal groups as imposed. Many Aboriginal people find themselves with questions about their identity. Some Aboriginal people have strong knowledgeable identities. Others are unsure of their identity. Others are discovering their identity. Some are proud of their identity. Others are not. Some Aboriginal people feel caught between two worlds—white and black. People who do not know their stories and history may not be sure of their identity, this in turn impacts on how they feel about themselves and how they relate to service providers including health and education institutions.

One example is that of Bronwyn Carlson, an Illawarra woman who always knew her family had been 'touched by the tar brush' (p. 1) but was unsure about this aspersion for the first 30 years of her life. It was only while attending Wollongong University as mature-aged student that she came to appreciate what her recently-clarified Aboriginal ancestry 'meant' (p. 6), and this awakening gave her a belonging that had been sorely missed during her troubled youth. Her declarations of Indigeneity however raised new concerns by attracting opposition from White Australians, and members of the Aboriginal community. 'After what I had been through', Carlson writes, 'I did not expect to be questioned about my family, and where we hailed from, to validate my claim to Aboriginality' (p. 6). Despite obtaining a 'Confirmation of Aboriginality', and employment within the Aboriginal organisations tasked with awarding confirmation certificates, Bronwyn continues to be 'abused, slandered and libelled' (p. 10) by those who doubt her claim to Indigeneity mainly because she has a New Zealand accent [5, 46].

The power of people to say who they are, to define their own identity and to relate their history is fundamental to their existence. The right to Aboriginal identity is affirmed by the United Nations [47], which states self-identification is a fundamental right underlined in a number of human rights documents. This right to Aboriginal identity was confirmed through a high court challenge in Tasmania ([6], FCA 389).

In Australia Aboriginal people have been hostage, in the main, to images created by non-Aboriginal Australians. There are different stories, for example—1788— Aboriginal people call it the invasion and non- Aboriginal people call it British settlement. The history since 1788 has had a dramatic impact on identity.

Behrendt [7] suggests that:

*The tensions between Indigenous Australians and the dominant culture are wrapped up in identity: how Australians see themselves, how they see others and* 

**113**

blaksidestory/quilt.html

*Foundation ([11], p. 37)*

*Exploring Aboriginal Identity in Australia and Building Resilience*

*how they want society to respect who they are… How societies deal with 'otherness' and 'sameness' will impact on their ability to allow individuals freedom from* 

*…We have learned that institutionalized violence is carried out in many ways. You don't need a gun to kill a man: all you have to do is deny him his self-respect and over a period of years you will kill him, you mentally castrate him. The only way to counteract this thing, this slow death, is to enthuse in Blacks, very aggressively, a sense of Aboriginality, self-awareness, a cultural and personal identity as a part of a national group, as an Aboriginal society. We see that Blacks are poverty stricken and completely defenceless as far as economic power is concerned, subject to manipulation by the white power structure, being used as cheap labour. We cannot counteract this white structure. What we can do and what we are trying to do, is instilled in the Black person a sense of self-awareness and self-respect. This is the* 

While Everett [9] explains that, being Aboriginal is based on spiritual-cultural beliefs which are connected to the worldly universe, and can be defined as follows:

*'We can see Aboriginality as a philosophical set of rules that are manifested in customary cultural practices which are set within a belief in the Great Spirit which comprises our Spiritual All. Aboriginality is the recognition by peoples that they are citizens of the worldly universe. The Earth is what nurtures us all - flora, fauna, rocks, water and air - and humans. The Earth is our Earth Mother and we are all citizens of our earth Mother. That is a core within the full meaning of Aboriginality'.*

*'It is about showing respect for all entities of the natural world as equal citizens of our Earth Mother, and as equal manifestations of the Spirit World. It is an education in doing. [Aboriginal] …education is not simply about human needs and selfinterests, but wholly about sharing life-giving sustenance between people and other entities of the natural world. The doing is about living together in respect, about demonstrating respect through protecting other's interests. If, for example, we pollute our water citizen then we have failed to respect and protect it and thus the water will be impure and cause illness to the water and other citizens who need it' [10].*

This question was asked of Aboriginal people in the Blak Side Story project in Footscray, Victoria. Their answers are recorded on video at http://www.cake.net.au/

Aboriginal people define Aboriginality not by skin colour but by relationships.

*'To me, Aboriginality is about that shared experience, that shared culture and that shared pride'. McQuire [12], Aboriginal journalist (NIT 10/7/2008 p. 25)*

*'You can only be a proud Aboriginal person if you carry your own learning and cultural lifestyle with you'. Galarrwuy Yunupingu, Chairman Yothu Yindi* 

**3. What does it mean to be Aboriginal in Australia today?**

Further comments regarding identity include:

*oppression and enough scope for the exercise of liberty. ([7], p. 76)*

*DOI: http://dx.doi.org/10.5772/intechopen.86677*

*only way we can survive nowadays.*

According to Stuurman [8]

*how they want society to respect who they are… How societies deal with 'otherness' and 'sameness' will impact on their ability to allow individuals freedom from oppression and enough scope for the exercise of liberty. ([7], p. 76)*

#### According to Stuurman [8]

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

• has Aboriginal or Torres Strait Islander descent

• identifies as an Aboriginal or Torres Strait Islander person

The current Australian definition of Indigeneity states that an Indigenous person

• is accepted as an Aboriginal or Torres Strait Islander by the community in

This definition developed by the Commonwealth Department of Aboriginal Affairs in the 1980s [4] is widely accepted within government departments, statutory bodies and institutions, but is sometimes contested by Aboriginal groups as imposed. Many Aboriginal people find themselves with questions about their identity. Some Aboriginal people have strong knowledgeable identities. Others are unsure of their identity. Others are discovering their identity. Some are proud of their identity. Others are not. Some Aboriginal people feel caught between two worlds—white and black. People who do not know their stories and history may not be sure of their identity, this in turn impacts on how they feel about themselves and how they relate to service providers including health and education

One example is that of Bronwyn Carlson, an Illawarra woman who always knew her family had been 'touched by the tar brush' (p. 1) but was unsure about this aspersion for the first 30 years of her life. It was only while attending Wollongong University as mature-aged student that she came to appreciate what her recently-clarified Aboriginal ancestry 'meant' (p. 6), and this awakening gave her a belonging that had been sorely missed during her troubled youth. Her declarations of Indigeneity however raised new concerns by attracting opposition from White Australians, and members of the Aboriginal community. 'After what I had been through', Carlson writes, 'I did not expect to be questioned about my family, and where we hailed from, to validate my claim to Aboriginality' (p. 6). Despite obtaining a 'Confirmation of Aboriginality', and employment within the Aboriginal organisations tasked with awarding confirmation certificates, Bronwyn continues to be 'abused, slandered and libelled' (p. 10) by those who doubt her claim to Indigeneity mainly because she has a

The power of people to say who they are, to define their own identity and to relate their history is fundamental to their existence. The right to Aboriginal identity is affirmed by the United Nations [47], which states self-identification is a fundamental right underlined in a number of human rights documents. This right to Aboriginal identity was confirmed through a high court challenge in Tasmania

*The tensions between Indigenous Australians and the dominant culture are wrapped up in identity: how Australians see themselves, how they see others and* 

In Australia Aboriginal people have been hostage, in the main, to images created by non-Aboriginal Australians. There are different stories, for example—1788— Aboriginal people call it the invasion and non- Aboriginal people call it British settlement. The history since 1788 has had a dramatic impact on identity.

**2. Who is indigenous in Australia?**

which he or she lives.

New Zealand accent [5, 46].

Behrendt [7] suggests that:

([6], FCA 389).

is one who:

institutions.

**112**

*…We have learned that institutionalized violence is carried out in many ways. You don't need a gun to kill a man: all you have to do is deny him his self-respect and over a period of years you will kill him, you mentally castrate him. The only way to counteract this thing, this slow death, is to enthuse in Blacks, very aggressively, a sense of Aboriginality, self-awareness, a cultural and personal identity as a part of a national group, as an Aboriginal society. We see that Blacks are poverty stricken and completely defenceless as far as economic power is concerned, subject to manipulation by the white power structure, being used as cheap labour. We cannot counteract this white structure. What we can do and what we are trying to do, is instilled in the Black person a sense of self-awareness and self-respect. This is the only way we can survive nowadays.*

While Everett [9] explains that, being Aboriginal is based on spiritual-cultural beliefs which are connected to the worldly universe, and can be defined as follows:

*'We can see Aboriginality as a philosophical set of rules that are manifested in customary cultural practices which are set within a belief in the Great Spirit which comprises our Spiritual All. Aboriginality is the recognition by peoples that they are citizens of the worldly universe. The Earth is what nurtures us all - flora, fauna, rocks, water and air - and humans. The Earth is our Earth Mother and we are all citizens of our earth Mother. That is a core within the full meaning of Aboriginality'.*

*'It is about showing respect for all entities of the natural world as equal citizens of our Earth Mother, and as equal manifestations of the Spirit World. It is an education in doing. [Aboriginal] …education is not simply about human needs and selfinterests, but wholly about sharing life-giving sustenance between people and other entities of the natural world. The doing is about living together in respect, about demonstrating respect through protecting other's interests. If, for example, we pollute our water citizen then we have failed to respect and protect it and thus the water will be impure and cause illness to the water and other citizens who need it' [10].*

### **3. What does it mean to be Aboriginal in Australia today?**

This question was asked of Aboriginal people in the Blak Side Story project in Footscray, Victoria. Their answers are recorded on video at http://www.cake.net.au/ blaksidestory/quilt.html

Further comments regarding identity include:

Aboriginal people define Aboriginality not by skin colour but by relationships.

*'You can only be a proud Aboriginal person if you carry your own learning and cultural lifestyle with you'. Galarrwuy Yunupingu, Chairman Yothu Yindi Foundation ([11], p. 37)*

*'To me, Aboriginality is about that shared experience, that shared culture and that shared pride'. McQuire [12], Aboriginal journalist (NIT 10/7/2008 p. 25)*

*'For Aboriginal and Torres Strait Islander peoples it is our beliefs, our culture, and our family histories that contribute to our sense of who we are and what we mean to others. They are our source of belonging—and they anchor us and steer our course through our lives' [13], Aboriginal and Torres Strait Islander Social Justice Commissioner (SMH 25/11/2011).*

*'Once we were too black and now we are too white. We reject that. Black or white, we are and always will be Aboriginal because of our unique cultural experience and identity. Aboriginality is not a question of skin colour—it is about our cultural connection to our communities and our history, a history that is alive and thriving'. Abigail Burchill, President Tarwirri Indigenous Law Students and Lawyers Association ([45], p. 4)*

Coe [14] goes on to argue that the Aboriginal child in school:

*Is sitting on the fence between white culture and black culture, not really belonging to either…*

*In going through a white school system, he (sic) has been forced to aspire towards lower middleclass values. He has been conditioned to up hold and try to keep white material values.*

*He is out in a position where he is caught in a tug of two cultures. There are two pulls on this black kid: he doesn't know which way to go - to forsake his Aboriginal identity and become an imitation white?*

This leads to the place of culture and identity for Indigenous students in Australia and the ways to develop, foster and encourage educational participation and success. A crucial element is the place of, and practices around, Indigenous culture and identity within the Australian educational system. For many Indigenous students and their families there is a clash between dominant educational culture and curriculum and their own culture and identity. Not only is English not always the first (or even second) language of many Indigenous students, but for those who predominantly speak English, the cultural use and meanings of language can be very different. Indigenous ways of learning and interacting and non-Indigenous ways of learning and interacting also do not necessarily coincide. The result of such cultural differences can be an exclusion of the Indigenous student from engaging in classroom activities, even if the student is present in class. A lack of recognition of Indigenous culture and identity from the school culture and identity can result in the effective exclusion of the Indigenous student and their family from the school community.

Hopefully this is changing with the introduction of the following professional standards for graduates in Teacher Education by the Australian Institute for Teaching and School Leadership (AITSL):

1.4 Strategies for teaching Aboriginal and Torres Strait Islander students, and 2.4 Understand and respect Aboriginal and Torres Strait Islander people to promote reconciliation between Indigenous and non-Indigenous Australians [15].

#### **4. Culture, and identity in education**

The importance of the recognition of Indigenous students' culture and identity must not be overlooked. Curricula in Australian schools tend to reflect and transmit

**115**

*Exploring Aboriginal Identity in Australia and Building Resilience*

the values and styles of non-Indigenous society, with little regard to Indigenous

Many educators are now striving to incorporate an Indigenous perspective in their teaching plans, and although this will help to educate non-Indigenous Australians about Aboriginal ways, it will not completely address the academic success of Indigenous students. In 1987 the NAEC (National Aboriginal Education Council n.d.) identified the clash between the schooling system and the home environment as a key factor in the educational underachievement of Indigenous students. In response, the NAEC recommended the following policies for Indigenous

1.Education for Aboriginal people must be a process that builds on what

Aboriginal people are by recognising and developing their natural potential and not by destroying their cultural heritage. Changes to the school system would enable a strong Aboriginal identity to be a positive education factor.

2.Aboriginal studies must become an integral part of the education of every Australian. It must be taught with a high degree of respect and understanding to develop an accurate knowledge of Australian history, Aboriginal cultures

3.The educational services offered to both traditional and non-traditional

Aboriginal people must aim for and be capable of developing and strengthening knowledge of and pride in their cultural heritage, as well as obtaining academic and technological skills required of Australians today. To ensure effective learning, the latter must be acquired in harmony with the Aboriginal person's own cultural values, identity and choice of lifestyle, whether they are residing in an urban, rural, traditional community or homeland centre.

4.To ensure the effectiveness of education services for Aboriginal people, they must play the major part in delivery of those services. This requires immediate and substantial change in policy, and implementation of new programs to train and employ Aboriginal people in the various fields of education so that they can take responsibility for implementing policies and delivering programs in

A school's engagement with Indigenous parents is also a vital part of improving the effectiveness of Indigenous education. Aboriginal parents are very aware of the importance of education for their children and all want their children to succeed. But when parents do not share the same values embodied in schooling, they are less inclined to encourage educational success. Many Aboriginal parents also lack the experience, knowledge and resources to aid their child's education, not to mention

For many Indigenous people, their past experience of the education system means that 'schools were just another invention by which white Australian society sought to control their lives' and a means 'of dislocating Aboriginal children from Aboriginal culture' [16]. More importantly, schooling failed to reflect and/ or include Aboriginal values and learning styles. Indigenous parents continue to express the desire for their children to be able to function in both their own culture and the wider Australian community. That is, they want their children to be edu-

There are four principal components of the curriculum process that impact on student learning: the teacher, including the ways in which the teacher makes

cated, but not at the expense of losing their identity and their culture.

*DOI: http://dx.doi.org/10.5772/intechopen.86677*

education, which remain relevant today:

culture and society.

and lifestyles.

Aboriginal education.

limited or negative experiences in their own schooling.

#### *Exploring Aboriginal Identity in Australia and Building Resilience DOI: http://dx.doi.org/10.5772/intechopen.86677*

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

*Commissioner (SMH 25/11/2011).*

*Association ([45], p. 4)*

*to either…*

*material values.*

*identity and become an imitation white?*

Teaching and School Leadership (AITSL):

**4. Culture, and identity in education**

*'For Aboriginal and Torres Strait Islander peoples it is our beliefs, our culture, and our family histories that contribute to our sense of who we are and what we mean to others. They are our source of belonging—and they anchor us and steer our course through our lives' [13], Aboriginal and Torres Strait Islander Social Justice* 

*'Once we were too black and now we are too white. We reject that. Black or white, we are and always will be Aboriginal because of our unique cultural experience and identity. Aboriginality is not a question of skin colour—it is about our cultural connection to our communities and our history, a history that is alive and thriving'. Abigail Burchill, President Tarwirri Indigenous Law Students and Lawyers* 

*Is sitting on the fence between white culture and black culture, not really belonging* 

*In going through a white school system, he (sic) has been forced to aspire towards lower middleclass values. He has been conditioned to up hold and try to keep white* 

*He is out in a position where he is caught in a tug of two cultures. There are two pulls on this black kid: he doesn't know which way to go - to forsake his Aboriginal* 

This leads to the place of culture and identity for Indigenous students in Australia and the ways to develop, foster and encourage educational participation and success. A crucial element is the place of, and practices around, Indigenous culture and identity within the Australian educational system. For many Indigenous students and their families there is a clash between dominant educational culture and curriculum and their own culture and identity. Not only is English not always the first (or even second) language of many Indigenous students, but for those who predominantly speak English, the cultural use and meanings of language can be very different. Indigenous ways of learning and interacting and non-Indigenous ways of learning and interacting also do not necessarily coincide. The result of such cultural differences can be an exclusion of the Indigenous student from engaging in classroom activities, even if the student is present in class. A lack of recognition of Indigenous culture and identity from the school culture and identity can result in the effective exclusion of the Indigenous student and their family from the school

Hopefully this is changing with the introduction of the following professional

1.4 Strategies for teaching Aboriginal and Torres Strait Islander students, and 2.4 Understand and respect Aboriginal and Torres Strait Islander people to promote

The importance of the recognition of Indigenous students' culture and identity must not be overlooked. Curricula in Australian schools tend to reflect and transmit

standards for graduates in Teacher Education by the Australian Institute for

reconciliation between Indigenous and non-Indigenous Australians [15].

Coe [14] goes on to argue that the Aboriginal child in school:

**114**

community.

the values and styles of non-Indigenous society, with little regard to Indigenous culture and society.

Many educators are now striving to incorporate an Indigenous perspective in their teaching plans, and although this will help to educate non-Indigenous Australians about Aboriginal ways, it will not completely address the academic success of Indigenous students. In 1987 the NAEC (National Aboriginal Education Council n.d.) identified the clash between the schooling system and the home environment as a key factor in the educational underachievement of Indigenous students. In response, the NAEC recommended the following policies for Indigenous education, which remain relevant today:


A school's engagement with Indigenous parents is also a vital part of improving the effectiveness of Indigenous education. Aboriginal parents are very aware of the importance of education for their children and all want their children to succeed. But when parents do not share the same values embodied in schooling, they are less inclined to encourage educational success. Many Aboriginal parents also lack the experience, knowledge and resources to aid their child's education, not to mention limited or negative experiences in their own schooling.

For many Indigenous people, their past experience of the education system means that 'schools were just another invention by which white Australian society sought to control their lives' and a means 'of dislocating Aboriginal children from Aboriginal culture' [16]. More importantly, schooling failed to reflect and/ or include Aboriginal values and learning styles. Indigenous parents continue to express the desire for their children to be able to function in both their own culture and the wider Australian community. That is, they want their children to be educated, but not at the expense of losing their identity and their culture.

There are four principal components of the curriculum process that impact on student learning: the teacher, including the ways in which the teacher makes decisions, instructs and transmits knowledge; the students, who are active participants in educational process; the social context within which interaction occurs; and, finally, the content of the curriculum. We need to focus on making changes within each component to influence the outcomes of schooling for Aboriginal students.

Giroux [17] states that educators need to approach learning not merely as the acquisition of knowledge but also as the production of cultural practices that offer students a sense of identity, place and hope. This approach—the integration of culture and cultural practices into teaching and learning—is central to successful education for Indigenous students. Crucial to teaching and learning is the relationship between the school, teachers and students and their communities. While Partington [18] informs us, 'at times it may be appropriate to focus on culturally instruction; at other times the elimination of racism and oppression may be an essential step in the process of education, and for some compensatory education to rectify deprived circumstances may be needed. We need to engage all approaches in the education of Aboriginal students by assuming a holistic view of the participants in the process, the situation in which learning occurs and the curriculum content which is desirable.'

As well as an approach which stresses the necessary attributes of schools in creating positive schooling outcomes for Indigenous students, literature is emerging around the importance of student identity in understanding the Indigenous experience of schooling and related success [19–21]. McDonald identifies the multilayered issues of identity Aboriginal students have to negotiate between home, school, peers and community. He also stresses the point that to develop positive self-identity, there needs to be a perceived value in school as students and an experience of school success ([21], p. 5).

While Herbert states, 'Prior to attempting to address cultural issues, it is critical to recognise the complexity of the task and the huge diversity of the cultural experience of individual Aboriginal people. The task may be daunting but there is no doubt that the need of Aboriginal and Torres Strait Islander students to maintain their cultural identity must not be overlooked.' The words of an Indigenous Education Worker highlight this issue:

*There is also a bit of an identity crisis too, in terms of how teachers and the school system perceive Aboriginals. A lot of these mixed marriages where the Aboriginal kids are not dark, 'What are you doing in this class, you're not Aboriginal. Why do you want to do Aboriginal Studies; you should be over there doing something else.' There is a lot of misinterpretation about what it is to be Aboriginal - who is an Aboriginal? They seem to run into a lot of conflict, not only from the teachers but also from the Aboriginal kids who are dark. Unless they know the parents, or they come from that area, particularly if they move around a lot, there is a lot of conflict within themselves, like who they are, what they are. What is an Aboriginal? The school system thinks that an Aboriginal comes from the Northern Territory ([22], p. 15)*

In Australia today many Aboriginal people live in cities, towns and other urban areas away from their traditional lands. Many have maintained their 'identity' and culture through family and Aboriginal community organisations. These networks give physical and emotional support and provide a sense of security and belonging. Aboriginal community organisations have been established with a focus on meeting specific Aboriginal needs. Generally Aboriginal and Torres Strait Islander peoples are reluctant to access mainstream services, as the delivery of specialist services through Aboriginal organisations is more acceptable.

**117**

for all students.

people:

transformed;

Islander students [29, 30].

*Exploring Aboriginal Identity in Australia and Building Resilience*

professional standards for Teacher Education graduates.

*students, backed up by Indigenous Education Units (p. 19)*

Capability; and Connection with communities.

who are the 'first in their family' [27];

**5.1 In our primary and secondary schools we need**

This is true within higher education settings as well where the establishment of Indigenous Support Centres have aided increased participation and success of Aboriginal and Torres Strait Islander students [23]. One such example is the Murina pathway program delivered by the Riawunna Centre at the University of Tasmania, in which students confirm their identity is welcomed and affirmed - Murina students 'have celebrated their identity in a place they never thought they could' ([24]).

For the future empowerment, self-determination and advancement of Indigenous peoples and communities education is the key. The United Nations Declaration on the Rights of Indigenous People (UNDRIP) states that through education, Indigenous people have the right to control, protect and develop Indigenous cultures and knowledge; and the right to an education without discrimination.

Aboriginal and Torres Strait Islander education in Australia is still largely dominated by western educative frameworks however this should change with the new

Australia's Indigenous population is under-represented in the university system. According to the (Behrendt Review, [25]) Indigenous people comprised 2.2% of the overall population, but only 1.4% of student enrolments at university in 2010, including only 1.1% of higher degree by research enrolments. Recommendation 10

*That universities adopt a whole-of-university approach to Aboriginal and Torres Strait Islander student success so that faculties and mainstream support services have primary responsibility for supporting Aboriginal and Torres Strait Islander* 

Implementing a Whole-of-University Approach to Improving Indigenous Access and Achievement ([26] pp. 3–5) identified the following seven key characteristics as necessary and could not work without each other: Acknowledgement of culture; Clear governance and accountability arrangements; Policy leadership; Processes;

Higher education can improve the lives of Aboriginal and Torres Strait Islander

Through universities, aspirations are raised, opportunities created and lives

The role of universities in creating social mobility is well illustrated by those

Providing pathways into positions of greater influence will drive real improve-

The literature highlights the importance of the 3 R's: respect, recognition and relationship to improve success in education for Aboriginal and Torres Strait

• Caring, interested, nurturing teachers dedicated to Aboriginal Education1

<sup>1</sup> Aboriginal Education is education for Indigenous Australian students and about Indigenous Australia

.

ments for Indigenous communities and the nation as a whole [28].

*DOI: http://dx.doi.org/10.5772/intechopen.86677*

**5. Education is vital**

of this review (2012) states:

This is true within higher education settings as well where the establishment of Indigenous Support Centres have aided increased participation and success of Aboriginal and Torres Strait Islander students [23]. One such example is the Murina pathway program delivered by the Riawunna Centre at the University of Tasmania, in which students confirm their identity is welcomed and affirmed - Murina students 'have celebrated their identity in a place they never thought they could' ([24]).

### **5. Education is vital**

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

Aboriginal students.

which is desirable.'

ence of school success ([21], p. 5).

Education Worker highlight this issue:

*Territory ([22], p. 15)*

through Aboriginal organisations is more acceptable.

decisions, instructs and transmits knowledge; the students, who are active participants in educational process; the social context within which interaction occurs; and, finally, the content of the curriculum. We need to focus on making changes within each component to influence the outcomes of schooling for

Giroux [17] states that educators need to approach learning not merely as the acquisition of knowledge but also as the production of cultural practices that offer students a sense of identity, place and hope. This approach—the integration of culture and cultural practices into teaching and learning—is central to successful education for Indigenous students. Crucial to teaching and learning is the relationship between the school, teachers and students and their communities. While Partington [18] informs us, 'at times it may be appropriate to focus on culturally instruction; at other times the elimination of racism and oppression may be an essential step in the process of education, and for some compensatory education to rectify deprived circumstances may be needed. We need to engage all approaches in the education of Aboriginal students by assuming a holistic view of the participants in the process, the situation in which learning occurs and the curriculum content

As well as an approach which stresses the necessary attributes of schools in creating positive schooling outcomes for Indigenous students, literature is emerging around the importance of student identity in understanding the Indigenous experience of schooling and related success [19–21]. McDonald identifies the multilayered issues of identity Aboriginal students have to negotiate between home, school, peers and community. He also stresses the point that to develop positive self-identity, there needs to be a perceived value in school as students and an experi-

While Herbert states, 'Prior to attempting to address cultural issues, it is critical to recognise the complexity of the task and the huge diversity of the cultural experience of individual Aboriginal people. The task may be daunting but there is no doubt that the need of Aboriginal and Torres Strait Islander students to maintain their cultural identity must not be overlooked.' The words of an Indigenous

*There is also a bit of an identity crisis too, in terms of how teachers and the school system perceive Aboriginals. A lot of these mixed marriages where the Aboriginal kids are not dark, 'What are you doing in this class, you're not Aboriginal. Why do you want to do Aboriginal Studies; you should be over there doing something else.' There is a lot of misinterpretation about what it is to be Aboriginal - who is an Aboriginal? They seem to run into a lot of conflict, not only from the teachers but also from the Aboriginal kids who are dark. Unless they know the parents, or they come from that area, particularly if they move around a lot, there is a lot of conflict within themselves, like who they are, what they are. What is an Aboriginal? The school system thinks that an Aboriginal comes from the Northern* 

In Australia today many Aboriginal people live in cities, towns and other urban areas away from their traditional lands. Many have maintained their 'identity' and culture through family and Aboriginal community organisations. These networks give physical and emotional support and provide a sense of security and belonging. Aboriginal community organisations have been established with a focus on meeting specific Aboriginal needs. Generally Aboriginal and Torres Strait Islander peoples are reluctant to access mainstream services, as the delivery of specialist services

**116**

For the future empowerment, self-determination and advancement of Indigenous peoples and communities education is the key. The United Nations Declaration on the Rights of Indigenous People (UNDRIP) states that through education, Indigenous people have the right to control, protect and develop Indigenous cultures and knowledge; and the right to an education without discrimination.

Aboriginal and Torres Strait Islander education in Australia is still largely dominated by western educative frameworks however this should change with the new professional standards for Teacher Education graduates.

Australia's Indigenous population is under-represented in the university system. According to the (Behrendt Review, [25]) Indigenous people comprised 2.2% of the overall population, but only 1.4% of student enrolments at university in 2010, including only 1.1% of higher degree by research enrolments. Recommendation 10 of this review (2012) states:

*That universities adopt a whole-of-university approach to Aboriginal and Torres Strait Islander student success so that faculties and mainstream support services have primary responsibility for supporting Aboriginal and Torres Strait Islander students, backed up by Indigenous Education Units (p. 19)*

Implementing a Whole-of-University Approach to Improving Indigenous Access and Achievement ([26] pp. 3–5) identified the following seven key characteristics as necessary and could not work without each other: Acknowledgement of culture; Clear governance and accountability arrangements; Policy leadership; Processes; Capability; and Connection with communities.

Higher education can improve the lives of Aboriginal and Torres Strait Islander people:

Through universities, aspirations are raised, opportunities created and lives transformed;

The role of universities in creating social mobility is well illustrated by those who are the 'first in their family' [27];

Providing pathways into positions of greater influence will drive real improvements for Indigenous communities and the nation as a whole [28].

The literature highlights the importance of the 3 R's: respect, recognition and relationship to improve success in education for Aboriginal and Torres Strait Islander students [29, 30].

#### **5.1 In our primary and secondary schools we need**

• Caring, interested, nurturing teachers dedicated to Aboriginal Education1 .

<sup>1</sup> Aboriginal Education is education for Indigenous Australian students and about Indigenous Australia for all students.


#### **5.2 In our universities we need**

An overarching Indigenous strategy with other supporting strategies linked to core areas such as Indigenous Learning and Teaching and Indigenous Research.


#### **5.3 The current situation**

The Universities Australia *Indigenous Strategy 2017-2020* is driving and focusing effort in the sector [32]. In response, the University of Tasmania (UTAS) has developed and is implementing a Strategic Plan for Aboriginal Engagement 2017–2020 focusing on enrolment, retention and success, Indigenous knowledge and employment strategies [33]. It has also relocated the Riawunna Centre for Aboriginal Education, a place for all Aboriginal and Torres Strait Islander peoples studying at UTAS to a central position on campus, www.utas.edu.au/riawunna.

The UTAS Aboriginal Engagement strategy is guiding efforts on the participation and success of Aboriginal and Torres Strait Islander students across the University, while the Riawunna Centre in its new location is more accessible to Hobart students and with its full complement of Higher Education Officers is well placed to recruit and support students on all campuses. The formation of an Aboriginal Leadership Group comprising the Pro Vice Chancellor Indigenous Leadership and Research, the Riawunna Head of Service and the Aboriginal Higher Education Advisor along with the appointment of an Aboriginal Employment Officer sends a strong message that UTAS is serious about Aboriginal education and employment.

**119**

digital Health Theme Bank<sup>2</sup>

<sup>2</sup> http://www.utas.edu.au/indigenous-health-theme-bank.

*Exploring Aboriginal Identity in Australia and Building Resilience*

As we look back on the 10 years that the Closing the Gap framework has been in place, we can see gains being made through the concerted efforts of states and territories working together to address common goals agreed by the Council of

• The annual growth rate of Supply Nation registered Indigenous businesses is

• Aboriginal and Torres Strait Islander people, on average, are living longer and factors contributing to the gap such as death from circulatory disease (heart

• Around 14,700 Aboriginal and Torres Strait Islander children are enrolled in early childhood education the year before full-time school, and there have been

• More Aboriginal and Torres Strait Islander children are staying in school

difference in the lives of Aboriginal and Torres Strait Islander people.

While closing the employment gap is challenging, we know educational attainment opens pathways to greater economic opportunity and can make an important

For more than 30 years I have been actively involved in the development of policies to improve the education outcomes for First Australians and learning resources to enhance the knowledge of all students about Australia's rich history and its Indigenous peoples. One resource which has been particularly successful is the cultural safety program *Come Walk with Us*, which was recognised with a Teaching and Learning Merit Award in 2017. This program was developed collaboratively with Aboriginal community members who were keen to share their experience to enrich the understanding of future graduates. Initially it was used to underpin the health curriculum at UTAS, as a well-trained health workforce will help to secure improved health outcomes for Aboriginal and Torres Strait Islander people. The program has since been extended across several degrees at the university and is in demand from external agencies. This demand is largely the result of UTAS graduates gaining employment in the sector and recommending the program for staff development in their respective agencies, including Primary Health Tasmania, Diabetes Tasmania, Rural Health Tasmania and Population Health Tasmania.

The development of effective health care delivery for Australia's First Peoples is currently one of the underpinning strategies to improve Indigenous health outcomes. Better informed health professionals and a well-trained health workforce will help to secure and sustain health improvements for Indigenous Australians. Responding to the poor education and health of Indigenous Australians at UTAS started with a Teaching and Learning grant to develop the CWWU program and

It is acknowledged that practitioners working with Indigenous Australians need a diverse range of skills to deliver care and prevent the development of

to provide resources for staff to use in their teaching.

*DOI: http://dx.doi.org/10.5772/intechopen.86677*

**5.4 Closing the Gap 2018 Report**

Australian Governments in 2008:

an average of 12.5%.

through to Year 12 [34].

**5.5 My contribution**

attack and stroke) are going down.

improvements in literacy and numeracy.

#### **5.4 Closing the Gap 2018 Report**

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

• Clear pathways to further study and career planning.

• Curriculum that is, student focused and responsive to their individual needs.

• Contact with roles models because you cannot be what you cannott see [31].

An overarching Indigenous strategy with other supporting strategies linked to core areas such as Indigenous Learning and Teaching and Indigenous Research.

• Cultural programs across Whole -of -university that create a culturally safe and culturally responsive environment for all students, staff and university

• Designated Aboriginal and Torres Strait Islander spaces and recognition of

• Respectful and reciprocal collaboration with Aboriginal and Torres Strait Islander people to achieve quality outcomes in Aboriginal and Torres Strait

• Whole-of-university recognition of Indigenous workforce esteem factors.

• Indigenous employment performance targets for Vice Chancellors and other

• Innovative recruitment strategies that promote the academy as a preferred career option and targets Indigenous graduates and final year graduands.

• Implementing these practices across all education sectors will enhance the

The Universities Australia *Indigenous Strategy 2017-2020* is driving and focusing effort in the sector [32]. In response, the University of Tasmania (UTAS) has developed and is implementing a Strategic Plan for Aboriginal Engagement 2017–2020 focusing on enrolment, retention and success, Indigenous knowledge and employment strategies [33]. It has also relocated the Riawunna Centre for Aboriginal Education, a place for all Aboriginal and Torres Strait Islander peoples studying at

The UTAS Aboriginal Engagement strategy is guiding efforts on the participation and success of Aboriginal and Torres Strait Islander students across the University, while the Riawunna Centre in its new location is more accessible to Hobart students and with its full complement of Higher Education Officers is well placed to recruit and support students on all campuses. The formation of an Aboriginal Leadership Group comprising the Pro Vice Chancellor Indigenous Leadership and Research, the Riawunna Head of Service and the Aboriginal Higher Education Advisor along with the appointment of an Aboriginal Employment Officer sends a strong message that UTAS is serious about Aboriginal education and

wellbeing, resilience and success of Indigenous students.

UTAS to a central position on campus, www.utas.edu.au/riawunna.

• Culturally safe learning environments.

their contribution to the institution.

Islander higher education.

senior executives.

**5.3 The current situation**

**5.2 In our universities we need**

community.

**118**

employment.

As we look back on the 10 years that the Closing the Gap framework has been in place, we can see gains being made through the concerted efforts of states and territories working together to address common goals agreed by the Council of Australian Governments in 2008:


While closing the employment gap is challenging, we know educational attainment opens pathways to greater economic opportunity and can make an important difference in the lives of Aboriginal and Torres Strait Islander people.

#### **5.5 My contribution**

For more than 30 years I have been actively involved in the development of policies to improve the education outcomes for First Australians and learning resources to enhance the knowledge of all students about Australia's rich history and its Indigenous peoples. One resource which has been particularly successful is the cultural safety program *Come Walk with Us*, which was recognised with a Teaching and Learning Merit Award in 2017. This program was developed collaboratively with Aboriginal community members who were keen to share their experience to enrich the understanding of future graduates. Initially it was used to underpin the health curriculum at UTAS, as a well-trained health workforce will help to secure improved health outcomes for Aboriginal and Torres Strait Islander people. The program has since been extended across several degrees at the university and is in demand from external agencies. This demand is largely the result of UTAS graduates gaining employment in the sector and recommending the program for staff development in their respective agencies, including Primary Health Tasmania, Diabetes Tasmania, Rural Health Tasmania and Population Health Tasmania.

The development of effective health care delivery for Australia's First Peoples is currently one of the underpinning strategies to improve Indigenous health outcomes. Better informed health professionals and a well-trained health workforce will help to secure and sustain health improvements for Indigenous Australians. Responding to the poor education and health of Indigenous Australians at UTAS started with a Teaching and Learning grant to develop the CWWU program and digital Health Theme Bank<sup>2</sup> to provide resources for staff to use in their teaching.

It is acknowledged that practitioners working with Indigenous Australians need a diverse range of skills to deliver care and prevent the development of

<sup>2</sup> http://www.utas.edu.au/indigenous-health-theme-bank.

chronic illness [35–37]. Learning these skills is likely to be more effective if integrated within the structure of the existing curriculum; this approach underpinned the health curriculum project of which *Come Walk With Us* is a key strategy. The program assists staff and students to gain some initial understandings to support the ongoing integration of Indigenous content across their studies at the University.

*Come Walk with Us* offers an introductory three -hour safe learning environment workshop with a Tasmanian Aboriginal context, described as a 'walk' through Aboriginal history in Tasmania. It is now a mandatory core part of the following courses: medicine, pharmacy, psychology, and social work, and is an elective in education and nursing.

Where CWWU is a core component of a course, an exam question is developed in consultation with the unit or course co-ordinator for inclusion in the end of semester exam to assess understanding of the impact of social determinants of health on Indigenous Australians.

At the end of each CWWU session participants are invited to complete a feedback sheet. This information provides insight on how they have responded to the session and alerts any gaps for future inclusion. The content has evolved over time in response to participant feedback and to include new significant achievements on the path to improving the health and education of Indigenous Australians. Since CWWU was first developed in 2004 it has been revised and updated every 2 years to keep content current. Following are some examples of feedback provided by participants.

Feedback from staff:


**121**

*Exploring Aboriginal Identity in Australia and Building Resilience*

• The map is powerful and thought provoking.

• Thank you for demonstrating the intensity of this era in history.

The activities made workshop interactive and interesting.

privilege, whereby Indigenous needs are not addressed [41, 42].

mation about the University locations and the link with Palawa5

to history by Aboriginal people in Tasmania; and

creation of rich resources including The Orb3

stakeholders highlighting the following:

<sup>3</sup> The Orb, https://www.theorb.tas.gov.au/.

<sup>5</sup> palawa the name of the Aboriginal people of Tasmania.

aboriginal-story-map-launched.

general public to enhance learning and understanding.

• The workshop has helped me to understand that I need to learn more.

• The history was related to real life stories/events – made it easier to understand.

• I liked the interactive 'journey' we were able to follow and be a part of, having

Evidence points to the pivotal role of cultural identity in shaping wellbeing for Indigenous Australians and other indigenous peoples around the world, and also because stronger cultural identity appears to promote greater participation and achievement in education and training [38], it is imperative that our university courses are inclusive of Australia's Indigenous cultures and histories to enhance the successful completion of studies by Indigenous students so they can more readily provide for their families, and contribute to their communities and the broader society. The CWWU program makes an important contribution to doing this at UTAS. All programs and services for Indigenous Australians should be based on 'cultural respect—recognition and respect of the inherent rights and traditions of Indigenous Australians which incorporates a holistic approach involving partnership, resilience building and accountability' [39]. This is the message promoted to students and staff at UTAS to try to counter the view that universities in Australia continue to be places of white habitus (Bourdieu, [40]) where race capital ensures reproduction of white

To further address this concern my other projects have focused on the story of place, the stories of the land on which the University is situated. This work involves Aboriginal people through the formation of reference groups and has facilitated the

A current project is the *Linking of Two Bays* which aims to provide access to infor-

The project was initiated as a Community Engagement project during 2017 with

1.The need for non-Aboriginal people to learn more about the contribution made

<sup>4</sup> Aboriginal Tasmania Story Map, http://www.media.utas.edu.au/general-news/all-news/online-interactive-

can be used as teaching resources in schools and the university as well as by the

students and staff with the deep history of the island of Tasmania in Australia.

and the Aboriginal Story Map4

which

places to engage

• High levels of interaction, lots of questions asked which promoted active

*DOI: http://dx.doi.org/10.5772/intechopen.86677*

us take a walk in their shoes.

listening.

Feedback from students:

Feedback from students:

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

University.

participants.

Feedback from staff:

• This journey dispelled some untrue stories.

• Should be compulsory for every Tasmanian.

knowledge in my teaching.

Aboriginal history.

standards.

experience.

history.

education and nursing.

health on Indigenous Australians.

chronic illness [35–37]. Learning these skills is likely to be more effective if integrated within the structure of the existing curriculum; this approach underpinned the health curriculum project of which *Come Walk With Us* is a key strategy. The program assists staff and students to gain some initial understandings to support the ongoing integration of Indigenous content across their studies at the

*Come Walk with Us* offers an introductory three -hour safe learning environment workshop with a Tasmanian Aboriginal context, described as a 'walk' through Aboriginal history in Tasmania. It is now a mandatory core part of the following courses: medicine, pharmacy, psychology, and social work, and is an elective in

Where CWWU is a core component of a course, an exam question is developed

At the end of each CWWU session participants are invited to complete a feedback sheet. This information provides insight on how they have responded to the session and alerts any gaps for future inclusion. The content has evolved over time in response to participant feedback and to include new significant achievements on the path to improving the health and education of Indigenous Australians. Since CWWU was first developed in 2004 it has been revised and updated every 2 years to keep content current. Following are some examples of feedback provided by

in consultation with the unit or course co-ordinator for inclusion in the end of semester exam to assess understanding of the impact of social determinants of

• The activity-based approach is excellent – well done – such a wonderful

• A great opportunity to gain some fundamental knowledge of Aboriginal

• It was great to learn more about Aboriginal history in Tasmanian. Very good for increasing awareness and consideration for including Aboriginal history and

• Thanks for today's session it was great value, a lot of the stuff I understood from my own work background which I tried to reflect in my feedback but I just wanted to add that it was a really good introduction for those that have not had much exposure to Aboriginal culture and particularly Tasmanian

• This session is invaluable to a personal and intellectual understanding of the impact of: the colonisation of Tasmania on the Aboriginal people of this island; understanding NI [non-Indigenous] culture; and understanding the fluidity of ethics. It is also important for a fuller understanding of the rationale for the Australian Institute for Teaching and School Leadership [AITSL]

**120**


Evidence points to the pivotal role of cultural identity in shaping wellbeing for Indigenous Australians and other indigenous peoples around the world, and also because stronger cultural identity appears to promote greater participation and achievement in education and training [38], it is imperative that our university courses are inclusive of Australia's Indigenous cultures and histories to enhance the successful completion of studies by Indigenous students so they can more readily provide for their families, and contribute to their communities and the broader society. The CWWU program makes an important contribution to doing this at UTAS.

All programs and services for Indigenous Australians should be based on 'cultural respect—recognition and respect of the inherent rights and traditions of Indigenous Australians which incorporates a holistic approach involving partnership, resilience building and accountability' [39]. This is the message promoted to students and staff at UTAS to try to counter the view that universities in Australia continue to be places of white habitus (Bourdieu, [40]) where race capital ensures reproduction of white privilege, whereby Indigenous needs are not addressed [41, 42].

To further address this concern my other projects have focused on the story of place, the stories of the land on which the University is situated. This work involves Aboriginal people through the formation of reference groups and has facilitated the creation of rich resources including The Orb3 and the Aboriginal Story Map4 which can be used as teaching resources in schools and the university as well as by the general public to enhance learning and understanding.

A current project is the *Linking of Two Bays* which aims to provide access to information about the University locations and the link with Palawa5 places to engage students and staff with the deep history of the island of Tasmania in Australia.

The project was initiated as a Community Engagement project during 2017 with stakeholders highlighting the following:

1.The need for non-Aboriginal people to learn more about the contribution made to history by Aboriginal people in Tasmania; and

<sup>3</sup> The Orb, https://www.theorb.tas.gov.au/.

<sup>4</sup> Aboriginal Tasmania Story Map, http://www.media.utas.edu.au/general-news/all-news/online-interactiveaboriginal-story-map-launched.

<sup>5</sup> palawa the name of the Aboriginal people of Tasmania.

2.The importance of Aboriginal peoples to identify, record and write their own histories of self and of country. The project team comprised six members who were joined by four major Aboriginal community groups, and more than 60 people have been involved in creating the resource.

We have called this project the *Linking of Two Bays* to show the ongoing connection between Emu Bay in Burnie and Sandy Bay in Hobart. This resource will provide access to a wide audience to learn more about Tasmania's Aboriginal history. It is designed for everyone to use, residents, tourists, students and teachers. It will also continue to evolve with ongoing collaboration and development.

By intertwining historical perspectives we share that the sites are living, that there is language and a message to be heard. The voice of the land may have diminished, but signs of a transformation are evident, and a conciliation of these voices enables real listening to ancient insights and deeper participation with place.

This digital story of place project has revealed Aboriginal names, language and history of place to encourage greater understanding of the islands' deep history. It also enables UTAS to foster attachment, belonging and identity for Indigenous students [43].

#### **6. Conclusion**

Aboriginal and Torres Strait Islander higher education needs to be everybody's business, and not the sole responsibility of Aboriginal and Torres Strait Islander staff. This is now reflected in UTAS's new strategic plan, but it also needs to be the focus of attention and effort at all levels of schooling from Kindergarten to Year 12 and in all education and training institutions. Our students need to be supported and encouraged throughout their learning journey, they need to believe in the benefits of education and they need to see and hear their peoples' voices in the learning materials and have contact with their own inspiring role models.

Our current arrangements seem to be working well but we need to


We also need to maintain and expand the provision of bursaries awarded at the end of year 10 for years 11 and 12 and continue financial support with scholarships for university, as these send a strong message to students and their family that we believe they can be successful.

These initiatives are needed across the nation as the population of Aboriginal and Torres Strait Islanders is young and growing each year [44, 45].

**123**

**Author details**

Clair Andersen

University of Tasmania, Hobart, Australia

provided the original work is properly cited.

\*Address all correspondence to: clair.andersen@utas.edu.au

© 2019 The Author(s). Licensee IntechOpen. This chapter is distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/ by/3.0), which permits unrestricted use, distribution, and reproduction in any medium,

*Exploring Aboriginal Identity in Australia and Building Resilience*

Our students need to believe they can come to university, will be supported, are welcome and will not have their identity challenged. While our governments must continue to focus effort and resources on improving education and employment

*DOI: http://dx.doi.org/10.5772/intechopen.86677*

outcomes for Australia's First Peoples.

I confirm there are no conflicts of interest.

**Conflict of interest**

<sup>6</sup> tunapri is an Aboriginal Tasmanian word meaning 'to know.'

<sup>7</sup> STEM is Science, Technology, Engineering and Maths.

*Exploring Aboriginal Identity in Australia and Building Resilience DOI: http://dx.doi.org/10.5772/intechopen.86677*

Our students need to believe they can come to university, will be supported, are welcome and will not have their identity challenged. While our governments must continue to focus effort and resources on improving education and employment outcomes for Australia's First Peoples.

### **Conflict of interest**

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

people have been involved in creating the resource.

also continue to evolve with ongoing collaboration and development.

materials and have contact with their own inspiring role models.

to explore career and study options such as the tunapri6

Torres Strait Islanders is young and growing each year [44, 45].

<sup>6</sup> tunapri is an Aboriginal Tasmanian word meaning 'to know.' <sup>7</sup> STEM is Science, Technology, Engineering and Maths.

Our current arrangements seem to be working well but we need to

2.The importance of Aboriginal peoples to identify, record and write their own histories of self and of country. The project team comprised six members who were joined by four major Aboriginal community groups, and more than 60

We have called this project the *Linking of Two Bays* to show the ongoing connection between Emu Bay in Burnie and Sandy Bay in Hobart. This resource will provide access to a wide audience to learn more about Tasmania's Aboriginal history. It is designed for everyone to use, residents, tourists, students and teachers. It will

By intertwining historical perspectives we share that the sites are living, that there is language and a message to be heard. The voice of the land may have diminished, but signs of a transformation are evident, and a conciliation of these voices enables real listening to ancient insights and deeper participation with place.

This digital story of place project has revealed Aboriginal names, language and history of place to encourage greater understanding of the islands' deep history. It also enables UTAS to foster attachment, belonging and identity for Indigenous

Aboriginal and Torres Strait Islander higher education needs to be everybody's business, and not the sole responsibility of Aboriginal and Torres Strait Islander staff. This is now reflected in UTAS's new strategic plan, but it also needs to be the focus of attention and effort at all levels of schooling from Kindergarten to Year 12 and in all education and training institutions. Our students need to be supported and encouraged throughout their learning journey, they need to believe in the benefits of education and they need to see and hear their peoples' voices in the learning

• work collaboratively with schools, colleges and training providers including

• provide clear pathway and alternative entry information to students and develop relationships with key people who are best placed to do this;

• create opportunities for students to connect personally with the university through social events on campus involvement in targeted specialised programs

programs.

We also need to maintain and expand the provision of bursaries awarded at the end of year 10 for years 11 and 12 and continue financial support with scholarships for university, as these send a strong message to students and their family that we

These initiatives are needed across the nation as the population of Aboriginal and

nursing, tunapri

**122**

students [43].

**6. Conclusion**

TAFE institutes;

education and tunapri STEM<sup>7</sup>

believe they can be successful.

I confirm there are no conflicts of interest.

#### **Author details**

Clair Andersen University of Tasmania, Hobart, Australia

\*Address all correspondence to: clair.andersen@utas.edu.au

© 2019 The Author(s). Licensee IntechOpen. This chapter is distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/ by/3.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.

### **References**

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[33] University of Tasmania. Strategic plan for aboriginal engagement 2017-2020. 2017. Available at: http:// www.utas.edu.au/\_\_data/assets/ pdf\_file/0006/953070/240716UTAS-Strategy-Plan-Aboriginal-V8.pdf

[34] Turnbull M. Prime Minister's Closing the Gap Report 2018. 2018. Available from: https://www.pmc.gov. au/sites/default/files/reports/closingthe-gap 2018/sites/default/files/ctg-

report-20183872.pdf?a=1

edu.au/ArticleDocuments/212/

paper.pdf

2008

aspx

education-system

https://rrr.edu.au

au/node/39231

*DOI: http://dx.doi.org/10.5772/intechopen.86677*

Aboriginal Studies Impact on Teaching.

[20] Herbert J. Getting to the heart of the matter: The importance of the aboriginal community voice in. Education. 2000;**16**:5. Available from: www.iier.org.au/qjer/qjer16/herbert.

[21] McDonald H. Supporting Indigenous Students as "Smart, Not Good" Knowers and Learners: The Practices of Two Teachers. Paper presented at AARE, Melbourne. 2004. Available from: http://www.aare.edu.

au/04pap/mcd04888.pdf

[22] Herbert J, Anderson L, Price D, Stehbens C. If they learn us right: Study of the factors affecting the attendance, suspension and exclusion of aboriginal students in secondary schools. In: Report of the 'Keeping Our Kids at School' Project. Sydney: Department of Employment, Education and Youth Affairs and the Australian Youth Foundation, Australian Centre for Equity through Education; 1999

[23] Perry L, Holt L. Searching for the songlines of aboriginal education and culture within Australian higher education. The Australian Educational Researcher. 2018. Available at: https:// researchers.mq.edu.au/en/publications/

searching-for-the-songlines-ofaboriginal-education-and-culture-w

[24] The Advocate. Culture and

from: http://www.theadvocate. com.au/story/5930074/universityoffers-pathway-that-celebratesculture-and-identity/ [Accessed:

[25] Department of Education and Training. Review of higher education access and outcomes for aboriginal and torres strait islander people: Final Report. 2012. Available from: https://

28-February-2019]

iher.education.gov.au

Identity celebrated at UTAS. Available

Canberra: DEST; 2005

html

*Exploring Aboriginal Identity in Australia and Building Resilience DOI: http://dx.doi.org/10.5772/intechopen.86677*

Aboriginal Studies Impact on Teaching. Canberra: DEST; 2005

[20] Herbert J. Getting to the heart of the matter: The importance of the aboriginal community voice in. Education. 2000;**16**:5. Available from: www.iier.org.au/qjer/qjer16/herbert. html

[21] McDonald H. Supporting Indigenous Students as "Smart, Not Good" Knowers and Learners: The Practices of Two Teachers. Paper presented at AARE, Melbourne. 2004. Available from: http://www.aare.edu. au/04pap/mcd04888.pdf

[22] Herbert J, Anderson L, Price D, Stehbens C. If they learn us right: Study of the factors affecting the attendance, suspension and exclusion of aboriginal students in secondary schools. In: Report of the 'Keeping Our Kids at School' Project. Sydney: Department of Employment, Education and Youth Affairs and the Australian Youth Foundation, Australian Centre for Equity through Education; 1999

[23] Perry L, Holt L. Searching for the songlines of aboriginal education and culture within Australian higher education. The Australian Educational Researcher. 2018. Available at: https:// researchers.mq.edu.au/en/publications/ searching-for-the-songlines-ofaboriginal-education-and-culture-w

[24] The Advocate. Culture and Identity celebrated at UTAS. Available from: http://www.theadvocate. com.au/story/5930074/universityoffers-pathway-that-celebratesculture-and-identity/ [Accessed: 28-February-2019]

[25] Department of Education and Training. Review of higher education access and outcomes for aboriginal and torres strait islander people: Final Report. 2012. Available from: https:// iher.education.gov.au

[26] Aboriginal and Torres Strait Islander Higher Education Advisory Council (ATSIHEAC). Implementing a Whole-of-University Approach to Improving Indigenous Access and Achievement. Available from: https:// docs.education.gov.au/system/files/doc/ other/atsiheac\_whole\_of\_university\_ paper.pdf

[27] Pyne C. Hon Minister. First in Family. 2015. Available from: https:// www.pyneonline.com.au/media-centre/ speeches/embracing-the-new-freedomtowards-the-worlds-best-highereducation-system

[28] Pyne C. Hon Minister. Letter to Prof Buckskin re Indigenous Higher Education [Accessed: 10-May-2015]

[29] Burns JH. Respect, Responsibility & Relationships. Booksurge Publishing; 2008

[30] The 3 R's Project Team University of South Australia. 2015. Available from: https://rrr.edu.au

[31] Kinane S. You can't be what you can't see. 2014. Available from: http://apo.org. au/node/39231

[32] Universities Australia Indigenous Strategy 2017-2020. 2017. Available from: https://www.universitiesaustralia. edu.au/ArticleDocuments/212/ FINAL%20Indigenous%20Strategy.pdf. aspx

[33] University of Tasmania. Strategic plan for aboriginal engagement 2017-2020. 2017. Available at: http:// www.utas.edu.au/\_\_data/assets/ pdf\_file/0006/953070/240716UTAS-Strategy-Plan-Aboriginal-V8.pdf

[34] Turnbull M. Prime Minister's Closing the Gap Report 2018. 2018. Available from: https://www.pmc.gov. au/sites/default/files/reports/closingthe-gap 2018/sites/default/files/ctgreport-20183872.pdf?a=1

**124**

html

2003

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

[9] Everett J. Beyond the Colonial Construct 'Voices from a First Nation' Festival of the Dreaming. Sydney; 1996

[10] Everett J. Aboriginal education and colonialism: Our Earthlinks under threat. Australian Journal of Environmental Education. 1997;**13**:11-16

[11] Yunupingu G. Yolongu celebrate.

[12] McQuire A. A colide-ascope of colour. NIT 10/7/2008. p. 25

[13] Gooda M. One's identity is for the individual to determine. Sydney Morning Herald (SMH). 2011

[14] Coe P. Chapter 18. In: Tatz C, editor. Black Viewpoints. 1975. Available from: http://www.creativespirits.info/ aboriginalculture/people/aboriginal-

[15] Australian Institute for Teaching and School Leadership (AITSL). Australian Professional Standards for Teachers. 2011. Available from: http://www.aitsl.edu.au/australianprofessional-standards-for-teachers/

[16] Royal Commission into Aboriginal

National Report. Canberra: Australian Government Publishing Service; 1991

[17] Giroux HA. Border Crossings: Cultural Workers and the Politics of Education. New York: Routledge,

[18] Partington G. Reconstructing aboriginal education. Education

[19] Craven R, Australian Department of Education, Science and Training. Evaluations and Investigations Programme. Teaching the Teachers

Chapman and Hill; 1992

Australia. 1997;**35**:14-16

Deaths in Custody (RCADC).

Koori Mail. 2010;**483**:37

identity.html

standards/list

**References**

1996

[1] Lingiari V, Deane WP. Some Signposts from Daguragu: The Inaugural Lingiari Lecture. Darwin: Council for Aboriginal Reconciliation;

[2] Roberts S. Ranger Uranium Environmental Inquiry: Transcript of Proceedings. Commonwealth of Australia. 1976. Available from: http:// www.mabonativetitle.com/info/

[3] Women's Reconciliation Network. Around the Kitchen Table: Video. Directors Lisa Jackson, Elaine Telford and Producer Sally Fitzpatrick. Sydney: Womens Reconciliation Network; 1998

[4] Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS). Indigenous Australians: Aboriginal and Torres Strait Islander people. 2018. Available from: https:// aiatsis.gov.au/explore/articles/

indigenous-australians-aboriginal-and-

[5] Watt E. Book Review, The Politics of Identity. Australian Anthropological Society; 2017. pp. 391-393. Available from: https://www.academia. edu/38173179/The\_Politics\_of\_ Identity\_Who\_Counts\_as\_Aboriginal\_

[6] James S, Ors W. 1998. Available from: http://www7.austlii.edu.au/cgibin/ viewdoc/au/cases/cth/FCA/1998/389.

[7] Behrendt L. Achieving Social Justice. Indigenous Rights and Australia's Future. Sydney: The Federation Press;

[8] Stuurman R. Aboriginal identity in contemporary society. Access to Indigenous Records National Forum. 2004 Available from: http://eprints.qut.

edu.au/2081/1/2081.pdf

torres-strait-islander-people

Today?auto=bookmark

dreamingCreatures.htm

[35] Désirée A, Lee-Ray E, Gomez A, Bereknyei S, Braddock CH 3rd. Does cultural competency training of health professionals improve patient outcomes? A systematic review and proposed algorithm for future research. Journal of General Internal Medicine. 2011, 2011;**26**(3):317-325. Available from: http://www.ncbi.nlm.nih.gov/ pmc/articles/PMC3043186/

[36] Health Policy Institute. Cultural Competence in Health Care: Is it Important for People with Chronic Conditions? Georgetown University; 2004. Issue Brief No. 5. Available from: https://hpi.gorgetown.edu/ agingsociety/pubhtml/cultural/cultural. html

[37] Lehman D, Fenza P, Hollinger-Smith L. Diversity and cultural competency in health care settings. In: A Mather LifeWays Orange Paper. 2012. Available from: http://www. matherlifewaysinstituteonaging.com/ wp-content/uploads/2012/03/diversityand-cultural-competency-in-healthcare-settings.pdf

[38] Dockery AM. Cultural Dimensions of Indigenous Participation in Vocational Education and Training: New Perspectives. Adelaide: NCVER; 2013

[39] Andersen C. Indigenous footprints on health curriculum. The Australian Journal of Indigenous Education. 2009;**38**:41

[40] Bourdieu P. Distinction. Cambridge, MA: Harvard University Press; 1984

[41] McAllan F. Getting 'post racial' in the 'Australian' state: What remains overlooked in the premise 'getting beyond racism'? Critical Race and Whiteness Studies. 2011;**7** Available from: http://www.acrawsa.org.au/ files/ejournalfiles/159CRAWSMcAl lan713.pdf

[42] O'Hehir A. White Privilege: An Insidious Virus That's Eating America. Salon Media Group, Inc. 2014. Available from: www.salon.com/2014/08/23/ white\_privilege\_an\_insdios\_virus\_ eating\_america

[43] Carter J, Hollinsworth D, Raciti M, Gilbey K. Academic 'place-making': Fostering attachment, belonging and identity for indigenous students in Australian universities. Teaching in Higher Education. 2018;**23**:243-260

[44] Biddle N, Markham F. Census 2016: What's changed for Indigenous Australians. In: The Conversation. 2017. Available from: https://theconversation. com/census-2016-whats-changed-forindigenous-australians-79836

[45] Coyne D. Bolt may face action. Koori Mail. 2009;**450**:4

[46] McGregor R. Review of the politics of identity: Who counts as aboriginal today? by Bronwyn Carlson. Aboriginal History. 2016;**40**:339-340

[47] United Nations. Permanent Forum on Indigenous Issues 5th Session, 'Who are Indigenous Peoples?' Fact Sheet. Available from: http://www.un.org/esa/ socdev/unpfii/documents/5session\_ factsheet1.pdf

**127**

**1. Introduction**

**Chapter 8**

Privatised Autonomy for the

Noongar People of Australia:

A New Model for Indigenous

The Aboriginal people of Australia have for many year sought rectification of past injustices. The absence of political structures whereby Aboriginal people can communicate their views; govern themselves in regard to their traditions and culture; and promote their interests in similar way as applies to other indigenous people in the world has been identified as a major shortcoming in the institutional arrangements in Australia. It is especially since 1992 when native title had first been recognised in Australia that Aboriginal people have attempted to utilise their land rights as a basis for a form of self-government or autonomy. The shortcoming of this approach is, however, that native title only exists in certain areas; native title is a relative weak right; and native title does not entail any self-governance rights. Recently the federal state of Western Australia broke new ground when it concluded an agreement, which has been described by some as a "treaty," with a large community of Aboriginal people in the south west of the state. This agreement, referred to as the Noongar Settlement, has the potential to serve as a model not only for other parts of Australia, but also beyond the shores of Australia. It recognises the traditional ownership of the land of the Noongar people, but then it goes on to establish for the Noongar people self-governing corporations. The corporations are not public law institutions, but in effect the powers and functions they discharge are of such a nature that they form in effect a fourth level of government. The corporations can exercise powers and functions not only in regard to aspects arising from traditional law and customs, but also in socio-economic fields such as housing, welfare, land management, conservation and tourism. The Noongar Settlement places Australia in a leading position when it comes to the holistic settlement of a land claim and the

Self-Government

*Bertus de Villiers*

recognition of Aboriginal people.

**Keywords:** indigenous self-determination, non-territorial autonomy,

The concept of autonomy or self-government for the Aboriginal people of Australia is, generally speaking, an ideal rather than reality. Small pockets of what can be called privatised self-management of cultural and community affairs exist

land claim settlement, native title, fourth level of government

**Abstract**

#### **Chapter 8**

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

[42] O'Hehir A. White Privilege: An Insidious Virus That's Eating America. Salon Media Group, Inc. 2014. Available from: www.salon.com/2014/08/23/ white\_privilege\_an\_insdios\_virus\_

[43] Carter J, Hollinsworth D, Raciti M, Gilbey K. Academic 'place-making': Fostering attachment, belonging and identity for indigenous students in Australian universities. Teaching in Higher Education. 2018;**23**:243-260

[44] Biddle N, Markham F. Census 2016: What's changed for Indigenous Australians. In: The Conversation. 2017. Available from: https://theconversation. com/census-2016-whats-changed-for-

indigenous-australians-79836

Koori Mail. 2009;**450**:4

History. 2016;**40**:339-340

factsheet1.pdf

[45] Coyne D. Bolt may face action.

[46] McGregor R. Review of the politics of identity: Who counts as aboriginal today? by Bronwyn Carlson. Aboriginal

[47] United Nations. Permanent Forum on Indigenous Issues 5th Session, 'Who are Indigenous Peoples?' Fact Sheet. Available from: http://www.un.org/esa/ socdev/unpfii/documents/5session\_

eating\_america

[35] Désirée A, Lee-Ray E, Gomez A, Bereknyei S, Braddock CH 3rd. Does cultural competency training of health professionals improve patient outcomes? A systematic review and proposed algorithm for future research. Journal of General Internal Medicine. 2011, 2011;**26**(3):317-325. Available from: http://www.ncbi.nlm.nih.gov/

pmc/articles/PMC3043186/

html

care-settings.pdf

2009;**38**:41

[36] Health Policy Institute. Cultural Competence in Health Care: Is it Important for People with Chronic Conditions? Georgetown University; 2004. Issue Brief No. 5. Available from: https://hpi.gorgetown.edu/ agingsociety/pubhtml/cultural/cultural.

[37] Lehman D, Fenza P, Hollinger-Smith L. Diversity and cultural competency in health care settings. In: A Mather LifeWays Orange Paper. 2012. Available from: http://www. matherlifewaysinstituteonaging.com/ wp-content/uploads/2012/03/diversityand-cultural-competency-in-health-

[38] Dockery AM. Cultural Dimensions

Vocational Education and Training: New Perspectives. Adelaide: NCVER; 2013

[39] Andersen C. Indigenous footprints on health curriculum. The Australian Journal of Indigenous Education.

[40] Bourdieu P. Distinction. Cambridge, MA: Harvard University Press; 1984

[41] McAllan F. Getting 'post racial' in the 'Australian' state: What remains overlooked in the premise 'getting beyond racism'? Critical Race and Whiteness Studies. 2011;**7** Available from: http://www.acrawsa.org.au/ files/ejournalfiles/159CRAWSMcAl

of Indigenous Participation in

**126**

lan713.pdf

## Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous Self-Government

*Bertus de Villiers*

### **Abstract**

The Aboriginal people of Australia have for many year sought rectification of past injustices. The absence of political structures whereby Aboriginal people can communicate their views; govern themselves in regard to their traditions and culture; and promote their interests in similar way as applies to other indigenous people in the world has been identified as a major shortcoming in the institutional arrangements in Australia. It is especially since 1992 when native title had first been recognised in Australia that Aboriginal people have attempted to utilise their land rights as a basis for a form of self-government or autonomy. The shortcoming of this approach is, however, that native title only exists in certain areas; native title is a relative weak right; and native title does not entail any self-governance rights. Recently the federal state of Western Australia broke new ground when it concluded an agreement, which has been described by some as a "treaty," with a large community of Aboriginal people in the south west of the state. This agreement, referred to as the Noongar Settlement, has the potential to serve as a model not only for other parts of Australia, but also beyond the shores of Australia. It recognises the traditional ownership of the land of the Noongar people, but then it goes on to establish for the Noongar people self-governing corporations. The corporations are not public law institutions, but in effect the powers and functions they discharge are of such a nature that they form in effect a fourth level of government. The corporations can exercise powers and functions not only in regard to aspects arising from traditional law and customs, but also in socio-economic fields such as housing, welfare, land management, conservation and tourism. The Noongar Settlement places Australia in a leading position when it comes to the holistic settlement of a land claim and the recognition of Aboriginal people.

**Keywords:** indigenous self-determination, non-territorial autonomy, land claim settlement, native title, fourth level of government

#### **1. Introduction**

The concept of autonomy or self-government for the Aboriginal people of Australia is, generally speaking, an ideal rather than reality. Small pockets of what can be called privatised self-management of cultural and community affairs exist

by way of Aboriginal corporations, but there is no overarching, national policy or legislative framework that allows, facilitates or encourages autonomy or selfgovernment by Aboriginal people. This state of affairs is on the one hand because Aboriginal people have been integrated into the "mainstream" of Australian political life, but on the other hand because there has been inadequate appreciation in non-Aboriginal society for the traditional governance arrangements that has regulated the lives of Aboriginal people prior to and after white settlement. Although Australia has an advanced system of human rights protection and the country is in many respects a beacon of liberty and freedom, the aspirations of its Aboriginal people to protect and promote their traditional laws and culture; to self-govern; and to be involved in matters that affect the continued existence of their ancient culture and traditions, are poorly developed. Australia represents the classical "melting pot" political culture whereby tolerance is displayed for multi-culturalism at an individual level, but where a single political identity exists with no special treatment for indigenous, cultural or linguistic minorities at a political level [1].

Although Australia is a federation, no special arrangements are made for powersharing, self-governing institutions or consultative processes for its indigenous people at local, state or federal levels. The non-recognition of Aboriginal people finds its origin in the opinion of the original settlers that Australia was *terra nullius* (no persons land). This contrasts to other settler-nations such as New Zealand, the USA and Canada where some form of treaty, reserved seats or special advisory bodies had been instituted for indigenous people as a form of recognition of their special rights.

Australia has however since the early 1990s been in a fundamental transformation as far as its approach to Aboriginal people is concerned. This is evidenced in three major developments: firstly, the claims for land rights of Aboriginal people was recognised for the first time in 1992 in the so called Mabo-decision and since then thousands of claims for native title have been lodged and native title has been determined over large parts of Australia; secondly, proposals are being discussed by the federal parliament to give Aboriginal people an elected "Voice" to give advices to the federal parliament and cabinet; and thirdly, several of the federal states are looking at ways to better accommodate Aboriginal people within the state, for example, in Victoria discussions are underway for a "treaty" to be entered into with Aboriginal people [2] and in the state of Western Australia the Noongar Settlement (the subject of this chapter) has been enacted by the state parliament [3].

In this chapter consideration is given to autonomy-arrangements that have been developed in Australia, with specific reference to the Noongar Settlement in the south-west of the state of Western Australia. The Settlement affects around 200,000 square kilometres of land and approximately 30,000 Noongar people. In comparison to the total landmass of Australia the size of the land the subject of the Noongar Settlement may not seem large, [4] but the Settlement is unique for the following reasons: firstly, the Settlement is geographically the largest of its kind in Australia; secondly, the Settlement is not limited to areas where native title exists; thirdly, the powers and functions of the Noongar people under the Settlement are not limited to the (limited) bundle of rights that comprise native title;1 fourthly, the state government of Western Australia is committed to make a substantial ongoing financial contribution to the Noongar people for the extinguishment of their native title; and fifthly, complex and advanced self-governing corporations are established

**129**

*Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous…*

for the Noongar people which, albeit under private law, have the powers and functions to service the interests of the Noongar people on what can generally referred

The corporations formed by the Noongar are in effect akin to a fourth level of government that provide services to the Noongar people on a personal and com-

This chapter provides an overview, analysis and assessment of the Noongar Settlement and concludes that the Settlement is a benchmark for indigenous selfgovernment and autonomy not only in Australia but possibly in other countries

The term "Aboriginal people" is used in this chapter for purposes of consistency, but it is acknowledged that the term does not adequately reflect the richness and diversity of the different cultures, languages and traditions that make up the

about Aboriginal "peoples" in the plural since so many identities make up the wider indigenous community. Although the respective Aboriginal peoples share some common beliefs and practices, the peoples are also diverse with different languages, cultures; beliefs; stories; and traditional country for which they are responsible. It is estimated that at the time of colonisation in the late eighteenth century there were around 250 indigenous languages spoken with a further 800 dialects, whereas today there are around 150, most of which are endangered [5]. Aboriginal people number around 2.6% of the population of Australia at 649,000 persons [6].3

median age of Aboriginal people is 23 compared to the average 38 years of age of non-Aboriginal people. Ten percentage of Aboriginal people speak an Aboriginal language at home. Each state and territory has a sizeable number of Aboriginal inhabitants:

NSW 216,176 QLD 186,482 WA 75,978 NT 58,248 VIC 47,788 SA 34,184 TAS 23,572 ACT 6508

The collective *political* opinion of Aboriginal people is not to be confused with their *community* identity. Political opinion often reflects an overarching political ambition or agenda, whereas community identity generally relates to the specific "country" or land from where an individual or community originates. According to

<sup>2</sup> There is no agreement in Australia about the appropriate way to refer to the indigenous people. Whereas the term "Aboriginal people" is most widely used, there are also other terms, for example, "First Nations" and "Indigenous People." In general, federal and state legislation and policies refer to "Aboriginal people."

<sup>3</sup> "2016 Census shows growing Aboriginal and Torres Strait Islander population [6]."

It may be more appropriate to speak

The

**2. Essential facts and figures about the Aboriginal people**

*DOI: http://dx.doi.org/10.5772/intechopen.86622*

to as a form of non-territorial autonomy.

Aboriginal and Torres Strait communities.2

munity basis.

**State of residence**

as well.

<sup>1</sup> In general the content of native title is not a standardised set of rights, but rather the rights that can be demonstrated existed at time of settlement and the rights that continue to be exercised. These rights may include camping; hunting; fishing; control of access; protection of important sites; and resource extraction.

*Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous… DOI: http://dx.doi.org/10.5772/intechopen.86622*

for the Noongar people which, albeit under private law, have the powers and functions to service the interests of the Noongar people on what can generally referred to as a form of non-territorial autonomy.

The corporations formed by the Noongar are in effect akin to a fourth level of government that provide services to the Noongar people on a personal and community basis.

This chapter provides an overview, analysis and assessment of the Noongar Settlement and concludes that the Settlement is a benchmark for indigenous selfgovernment and autonomy not only in Australia but possibly in other countries as well.

#### **2. Essential facts and figures about the Aboriginal people**

The term "Aboriginal people" is used in this chapter for purposes of consistency, but it is acknowledged that the term does not adequately reflect the richness and diversity of the different cultures, languages and traditions that make up the Aboriginal and Torres Strait communities.2 It may be more appropriate to speak about Aboriginal "peoples" in the plural since so many identities make up the wider indigenous community. Although the respective Aboriginal peoples share some common beliefs and practices, the peoples are also diverse with different languages, cultures; beliefs; stories; and traditional country for which they are responsible.

It is estimated that at the time of colonisation in the late eighteenth century there were around 250 indigenous languages spoken with a further 800 dialects, whereas today there are around 150, most of which are endangered [5]. Aboriginal people number around 2.6% of the population of Australia at 649,000 persons [6].3 The median age of Aboriginal people is 23 compared to the average 38 years of age of non-Aboriginal people. Ten percentage of Aboriginal people speak an Aboriginal language at home. Each state and territory has a sizeable number of Aboriginal inhabitants:


The collective *political* opinion of Aboriginal people is not to be confused with their *community* identity. Political opinion often reflects an overarching political ambition or agenda, whereas community identity generally relates to the specific "country" or land from where an individual or community originates. According to

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

by way of Aboriginal corporations, but there is no overarching, national policy or legislative framework that allows, facilitates or encourages autonomy or selfgovernment by Aboriginal people. This state of affairs is on the one hand because Aboriginal people have been integrated into the "mainstream" of Australian political life, but on the other hand because there has been inadequate appreciation in non-Aboriginal society for the traditional governance arrangements that has regulated the lives of Aboriginal people prior to and after white settlement. Although Australia has an advanced system of human rights protection and the country is in many respects a beacon of liberty and freedom, the aspirations of its Aboriginal people to protect and promote their traditional laws and culture; to self-govern; and to be involved in matters that affect the continued existence of their ancient culture and traditions, are poorly developed. Australia represents the classical "melting pot" political culture whereby tolerance is displayed for multi-culturalism at an individual level, but where a single political identity exists with no special treatment

for indigenous, cultural or linguistic minorities at a political level [1].

Although Australia is a federation, no special arrangements are made for power-

Australia has however since the early 1990s been in a fundamental transformation as far as its approach to Aboriginal people is concerned. This is evidenced in three major developments: firstly, the claims for land rights of Aboriginal people was recognised for the first time in 1992 in the so called Mabo-decision and since then thousands of claims for native title have been lodged and native title has been determined over large parts of Australia; secondly, proposals are being discussed by the federal parliament to give Aboriginal people an elected "Voice" to give advices to the federal parliament and cabinet; and thirdly, several of the federal states are looking at ways to better accommodate Aboriginal people within the state, for example, in Victoria discussions are underway for a "treaty" to be entered into with Aboriginal people [2] and in the state of Western Australia the Noongar Settlement

(the subject of this chapter) has been enacted by the state parliament [3].

not limited to the (limited) bundle of rights that comprise native title;1

In this chapter consideration is given to autonomy-arrangements that have been developed in Australia, with specific reference to the Noongar Settlement in the south-west of the state of Western Australia. The Settlement affects around 200,000 square kilometres of land and approximately 30,000 Noongar people. In comparison to the total landmass of Australia the size of the land the subject of the Noongar Settlement may not seem large, [4] but the Settlement is unique for the following reasons: firstly, the Settlement is geographically the largest of its kind in Australia; secondly, the Settlement is not limited to areas where native title exists; thirdly, the powers and functions of the Noongar people under the Settlement are

state government of Western Australia is committed to make a substantial ongoing financial contribution to the Noongar people for the extinguishment of their native title; and fifthly, complex and advanced self-governing corporations are established

<sup>1</sup> In general the content of native title is not a standardised set of rights, but rather the rights that can be demonstrated existed at time of settlement and the rights that continue to be exercised. These rights may include camping; hunting; fishing; control of access; protection of important sites; and resource

fourthly, the

sharing, self-governing institutions or consultative processes for its indigenous people at local, state or federal levels. The non-recognition of Aboriginal people finds its origin in the opinion of the original settlers that Australia was *terra nullius* (no persons land). This contrasts to other settler-nations such as New Zealand, the USA and Canada where some form of treaty, reserved seats or special advisory bodies had been instituted for indigenous people as a form of recognition of their

**128**

extraction.

special rights.

<sup>2</sup> There is no agreement in Australia about the appropriate way to refer to the indigenous people. Whereas the term "Aboriginal people" is most widely used, there are also other terms, for example, "First Nations" and "Indigenous People." In general, federal and state legislation and policies refer to "Aboriginal people." <sup>3</sup> "2016 Census shows growing Aboriginal and Torres Strait Islander population [6]."

Aboriginal customary law a community or an individual may only speak for and is responsible to care for the country from where their apical ancestors originated.

The question whether a specific person is connected to a particular country is determined by the ancestry of a person and whether they are related to an apical ancestor that resided in the country at the time of white settlement. Extensive anthropological, birth and other historical records are often used to ascertain whether a particular person is indeed connected to a particular community and/or country. The mere fact that an Aboriginal person resides in a certain area therefore does not give them the right to "speak" for the country where they currently reside. This applies particularly to cities and towns to which Aboriginal people may have migrated but without them having the right to speak for the land where the town or city is located.

The term "Aboriginal people" therefore contains a kaleidoscope of diversity of languages, cultures, traditions, responsibilities for country; and beliefs. The political accommodation of this complexity, particular by way of some form of territorial or non-territorial autonomy, is exceedingly challenging.

#### **3. Meaning of** *autonomy* **and** *self-government* **in the context of Australia**

The Australian Constitution does not contain any reference to the terms "autonomy" or "self-government" albeit that the nation is a federation. No special arrangements were made at the time of writing the Constitution in 1901 for the rights, interests or aspirations of the Aboriginal people.4 Although several subsequent statutes at a federal and state level deal with the interests of Aboriginal people, there is also no reference in those statutes to "self-government" or "autonomy." Whereas Australia is a signatory to the *United Nations International Declaration on the Rights of Indigenous People*, 5 none of the main political parties in Australia subscribes to the enactment of separate institutions under public law for self-government of Aboriginal people. There is also no agreement within the wider Aboriginal community as to how practical content should be given to claims for self-determination and self-government.

There are, however, useful examples of how some Aboriginal communities have been able to develop systems of limited self-government within the constraints of the legal system. In this chapter reference is made to two examples in the state of Western Australia where Aboriginal communities have developed self-governing institutions in regard to matters that impact on their daily lives; their culture, law and customs. The first is the Bidyadanga Aboriginal community which has a form of territorial autonomy over their community lands; and the second (and principal focus of this chapter) is the Noongar people which recently gained a form of

**131**

*Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous…*

the laws, customs and socio-economic wellbeing of their community.

non-territorial, personal autonomy in regard to a wide-range of matters that affect

In its widest meaning autonomy and self-government for purposes of this chapter are terms used interchangeably to refer to the legal capacity of a community to discharge functions that are decentralised to its elected institutions within the context

across all jurisdictions and in all circumstances [8]. The nature and extent of self-government and autonomy depend on the legal framework and factual circumstances of

in politics, but poorly defined at law. It is therefore not surprising that international law shies away from references to a "right" to autonomy or self-government [9].8

self-determination of "any community sharing a common cultural and language heritage";10 the Constitution of Brazil which recognises the right of Indians to protect their rights collectively;11 the Slovene Constitution which recognises the collective rights of the Italian and Hungarian groups to establish collective entities that could act on behalf of their members;12 and the Constitution of Spain refers to the "right to autonomy" of nationalities and regions without defining "autonomy."13 International experience in federal and decentralised systems shows that it is relatively uncomplicated to use various forms of territorial autonomy, be it by way of regional or local governments, to provide indirect autonomy to communities. The Bidyadanga community of Western Australia falls within this category. The challenge, of which the solution remains elusive, is how to deal with communities of which the members have no geographical area of their "own" where they constitute a majority for purposes of regional or local government.14 The Noongar community,

It is recognised by scholars and practitioners alike, that the range of options to protect the right of minorities to autonomy over matters that affect their culture,

<sup>6</sup> "Autonomy" derives from Greek and means to "own" (*auto*) and "judicial" (*nomos*). While it is accepted that many associations, clubs and organisations manage themselves pursuant to civil law, the "autonomy" or "self-government" referred to in this chapter presupposes an arrangement in public law whereby a region or community corporation receives powers and functions by way of decentralisation to

<sup>7</sup> Even in constitutions in which the term "autonomy" is used, the term is not necessary defined. <sup>8</sup> Kymlicka highlights the absence of an international standard to autonomy of self-government for minority communities, but he acknowledges that as far as indigenous people are concerned there is a "right" to self-determination, but the content of the right is to be determined by sovereign states.

<sup>14</sup> See for example, the recommendations of Lund for non-territorial arrangements in Europe in Organization for Security and Co-operation in Europe, [10] and the commentary by Malloy in regard to

also from Western Australia, falls within this category.

govern itself in accordance with laws or by-laws. See [7].

the de-territorialisation of minority interests in [11, 12].

 a47 Constitution of Ethiopia. a235 Constitution of South Africa. a232 Constitution of Brazil. a64 Constitution of Slovenia. a2 Constitution of Spain.

In some instances, sovereign states have made reference to a right to internal selfgovernment, autonomy and self-determination within their constitutions. But even in those cases the terms are used in a non-legally defined manner. A few examples of the developments in state constitutions where the right to self-determination, self-government and autonomy have been included are the Constitution of Ethiopia which recognises the right to self-determination of nationalities, including the

The term "autonomy" is not a term of art with consistent meaning

Self-government and autonomy are terms that are widely used

the Constitution of South Africa which recognises the right to

*DOI: http://dx.doi.org/10.5772/intechopen.86622*

of public law.6

each sovereign nation.7

right to secession;9

<sup>4</sup> No special representation was given for Aboriginal people to participate in the drafting process of the Constitution and no special rights or recognition arose from the drafting process to accommodate the unique cultures and identifies of Aboriginal people. In fact, until 1967 Aboriginal people were not included in the national census.

<sup>5</sup> See *Official Records of the General Assembly, Sixty-first Session, Supplement No. 53* (A/61/53), part one, chap. II, sect. A. The International Declaration was adopted by the General Assembly of the United Nations on Thursday 13 September 2007. It was adopted with 143 countries voting in favor, 11 abstaining and four voting against. Although Australia was one of only four countries who voted against the Declaration, Australia endorsed the Declaration on 3 April 2009. The Declaration is non-binding, but countries are expected to develop, promote and adjust policies in a manner that is consistent with the Declaration, but the "rights" contained therein cannot be enforced by a court of law.

#### *Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous… DOI: http://dx.doi.org/10.5772/intechopen.86622*

non-territorial, personal autonomy in regard to a wide-range of matters that affect the laws, customs and socio-economic wellbeing of their community.

In its widest meaning autonomy and self-government for purposes of this chapter are terms used interchangeably to refer to the legal capacity of a community to discharge functions that are decentralised to its elected institutions within the context of public law.6 The term "autonomy" is not a term of art with consistent meaning across all jurisdictions and in all circumstances [8]. The nature and extent of self-government and autonomy depend on the legal framework and factual circumstances of each sovereign nation.7 Self-government and autonomy are terms that are widely used in politics, but poorly defined at law. It is therefore not surprising that international law shies away from references to a "right" to autonomy or self-government [9].8

In some instances, sovereign states have made reference to a right to internal selfgovernment, autonomy and self-determination within their constitutions. But even in those cases the terms are used in a non-legally defined manner. A few examples of the developments in state constitutions where the right to self-determination, self-government and autonomy have been included are the Constitution of Ethiopia which recognises the right to self-determination of nationalities, including the right to secession;9 the Constitution of South Africa which recognises the right to self-determination of "any community sharing a common cultural and language heritage";10 the Constitution of Brazil which recognises the right of Indians to protect their rights collectively;11 the Slovene Constitution which recognises the collective rights of the Italian and Hungarian groups to establish collective entities that could act on behalf of their members;12 and the Constitution of Spain refers to the "right to autonomy" of nationalities and regions without defining "autonomy."13

International experience in federal and decentralised systems shows that it is relatively uncomplicated to use various forms of territorial autonomy, be it by way of regional or local governments, to provide indirect autonomy to communities. The Bidyadanga community of Western Australia falls within this category. The challenge, of which the solution remains elusive, is how to deal with communities of which the members have no geographical area of their "own" where they constitute a majority for purposes of regional or local government.14 The Noongar community, also from Western Australia, falls within this category.

It is recognised by scholars and practitioners alike, that the range of options to protect the right of minorities to autonomy over matters that affect their culture,

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

or non-territorial autonomy, is exceedingly challenging.

interests or aspirations of the Aboriginal people.4

5

Aboriginal customary law a community or an individual may only speak for and is responsible to care for the country from where their apical ancestors originated. The question whether a specific person is connected to a particular country is determined by the ancestry of a person and whether they are related to an apical ancestor that resided in the country at the time of white settlement. Extensive anthropological, birth and other historical records are often used to ascertain whether a particular person is indeed connected to a particular community and/or country. The mere fact that an Aboriginal person resides in a certain area therefore does not give them the right to "speak" for the country where they currently reside. This applies particularly to cities and towns to which Aboriginal people may have migrated but without them having the right to speak for the land where the town or

The term "Aboriginal people" therefore contains a kaleidoscope of diversity of languages, cultures, traditions, responsibilities for country; and beliefs. The political accommodation of this complexity, particular by way of some form of territorial

**3. Meaning of** *autonomy* **and** *self-government* **in the context of Australia**

The Australian Constitution does not contain any reference to the terms "autonomy" or "self-government" albeit that the nation is a federation. No special arrangements were made at the time of writing the Constitution in 1901 for the rights,

statutes at a federal and state level deal with the interests of Aboriginal people, there is also no reference in those statutes to "self-government" or "autonomy." Whereas Australia is a signatory to the *United Nations International Declaration on the Rights* 

There are, however, useful examples of how some Aboriginal communities have been able to develop systems of limited self-government within the constraints of the legal system. In this chapter reference is made to two examples in the state of Western Australia where Aboriginal communities have developed self-governing institutions in regard to matters that impact on their daily lives; their culture, law and customs. The first is the Bidyadanga Aboriginal community which has a form of territorial autonomy over their community lands; and the second (and principal focus of this chapter) is the Noongar people which recently gained a form of

the enactment of separate institutions under public law for self-government of Aboriginal people. There is also no agreement within the wider Aboriginal community as to how practical content should be given to claims for self-determination

<sup>4</sup> No special representation was given for Aboriginal people to participate in the drafting process of the Constitution and no special rights or recognition arose from the drafting process to accommodate the unique cultures and identifies of Aboriginal people. In fact, until 1967 Aboriginal people were not

<sup>5</sup> See *Official Records of the General Assembly, Sixty-first Session, Supplement No. 53* (A/61/53), part one, chap. II, sect. A. The International Declaration was adopted by the General Assembly of the United Nations on Thursday 13 September 2007. It was adopted with 143 countries voting in favor, 11 abstaining and four voting against. Although Australia was one of only four countries who voted against the Declaration, Australia endorsed the Declaration on 3 April 2009. The Declaration is non-binding, but countries are expected to develop, promote and adjust policies in a manner that is consistent with the

Declaration, but the "rights" contained therein cannot be enforced by a court of law.

none of the main political parties in Australia subscribes to

Although several subsequent

**130**

city is located.

*of Indigenous People*,

and self-government.

included in the national census.

<sup>6</sup> "Autonomy" derives from Greek and means to "own" (*auto*) and "judicial" (*nomos*). While it is accepted that many associations, clubs and organisations manage themselves pursuant to civil law, the "autonomy" or "self-government" referred to in this chapter presupposes an arrangement in public law whereby a region or community corporation receives powers and functions by way of decentralisation to govern itself in accordance with laws or by-laws. See [7].

<sup>7</sup> Even in constitutions in which the term "autonomy" is used, the term is not necessary defined.

<sup>8</sup> Kymlicka highlights the absence of an international standard to autonomy of self-government for minority communities, but he acknowledges that as far as indigenous people are concerned there is a "right" to self-determination, but the content of the right is to be determined by sovereign states.

<sup>9</sup> a47 Constitution of Ethiopia.

<sup>10</sup> a235 Constitution of South Africa.

<sup>11</sup> a232 Constitution of Brazil.

<sup>12</sup> a64 Constitution of Slovenia.

<sup>13</sup> a2 Constitution of Spain.

<sup>14</sup> See for example, the recommendations of Lund for non-territorial arrangements in Europe in Organization for Security and Co-operation in Europe, [10] and the commentary by Malloy in regard to the de-territorialisation of minority interests in [11, 12].

language or religion cannot in all circumstances be solely based on territorial arrangements [13–16]. Hofmann observes as follows in regard to the practical application of non-territorial autonomy to minority groups:

*"Generally speaking, the concepts of cultural autonomy or functional layering of public authority may be usefully applied in situations where a minority does not constitute the majority or a sizable minority of the population in a given region of a state but finds itself dispersed throughout the whole of a state. In such a situation (e.g., Hungary) [17]15 have opted for the introduction of a system endowing institutions established under public law with the power to regulate or at least to have a most significant say in the regulation of—"cultural affairs," including, in particular, the running of public education institutions, such as Kindergardens and schools, or the management of their own cultural institutions and media, such a publically funded radio and TV broadcasting programmes. The important aspect here is the fact that minorities exercise, in the fields concerned, some kind of self-government—usually through representative bodies, the members of which are elected by and from the members of the minority concerned [18]." (author emphasis).*

Self-government and autonomy for Aboriginal people in Australia generally fall substantially short of arrangements that have been made in some other countries where the rights and aspirations indigenous people had to be accommodated. The examples set by the Bidyadanga community and the Noongar people may however provide fresh benchmarks for other Aboriginal communities to follow.

#### **4. Land rights as an avenue to** *privatised* **autonomy**

The advent of native title in 1992 in Australia has established a potential base whereupon Aboriginal communities who have instituted successful land claims, can develop limited non-governmental forms of self-government by way of the corporations registered pursuant to the federal *Corporations (Aboriginal and Torres Strait Islander) Act 124 of 2006* (CATSI Act).

The CATSI Act is specifically designed to provide a legal mechanism for Aboriginal people to register a corporation that can manage and control their own affairs [19].16 Corporations under the CATSI Act are easy to establish by way of a template; the corporation must be not for profit; the members receive free legal advice; and the corporation operates under the supervision of a federal registrar of Aboriginal corporations. Federal funds are also made available to assist in the management of the corporations; to ensure transparency of activities of corporations; proper recordkeeping; and implement proper corporate governance procedures by

**133**

information see [21].

as "composite rights."

*Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous…*

Strait."18 Around 3000 Aboriginal corporations have been registered.

for purposes of managing and controlling their native title rights.

bears the potential of far reaching privatised self-government.

ment, social justice, and reparation can be pursued [23].21

mental cultural associations that can be established under Russian law.

members of the corporation wherever they reside.20

corporations.17 Only Aboriginal people may register a corporation under the CATSI Act and the name of the corporation must include "Aboriginal" or/and a "Torres

All Aboriginal corporations, including the Noongar Corporations, operate within the sphere of private law; the corporation is a legal person that can sue and be sued; the corporation is liable only to its members; and the services are offered to

These corporations under the CATSI Act can be used for a form of autonomy or self-management within the sphere of private law, whereby the corporation can provide a wide range of cultural, linguistic, social and other services to its members. As is explained in more detail below, the Noongar people have established seven Aboriginal corporations under the CATSI Act to manage the native title settlement they have reached with the state government of Western Australia in a manner that

The success of Aboriginal people to claim native title has been pivotal to their desire for self-determination in general, and autonomy in particular. Although the *United Nations International Declaration on the Rights of Indigenous People* does not prescribe what is meant by "self-determination," it is accepted that restoration of land rights and greater control over traditional lands are essential elements for self-determination. Access to land and restoration of rights in land constitute a basis whereupon other elements of self-determination such as autonomy, self-govern-

Aboriginal people have had a long and arduous struggle for land rights. The philosophy of the original settlers was that Australia was *terra nullius*, or no persons land, and therefore there was no need for the settlers or their successors to enter into any treaty or to reach any terms of settlement with the Aboriginal people they encountered. This view prevailed for close to two centuries after settlement. In *Milirrpum* v *Nabalco Pty Ltd* matter the question of "native title" was raised for the first time in Australia, but the court found that the Aboriginal people at the time of settlement was so uncivilised and primitive that no coherent form of proprietary

<sup>17</sup> See the on-line tools to assist members of Aboriginal corporations to manage their affairs under the [20]. <sup>18</sup> The Registrar receives annual reports from corporations; ensures compliance with the CATSI Act; and may even prosecute if there had been failure to comply with the provisions of the CATSI Act. For more

<sup>19</sup> The federal *Native Title Act 1993* mandates that upon successful determination of a claim for native title, the title is held in trust by an Aboriginal corporation. See office of Registrar of Aboriginal Corporations, [22]. <sup>20</sup> See [7] for a brief comparison between the Aboriginal corporations in Australia and the non-govern-

<sup>21</sup> The concept "self-determination" is fluid. In its most general application it includes political and administrative rights; powers-sharing and self-government, land rights and control over natural resources; and consultative rights. Tomaselli refers to the various facets of self-determination collectively

Registration of an Aboriginal corporation is open to any Aboriginal community, but for relevance of this chapter is that an Aboriginal community who has had a successful claim for native title, *must* be incorporated under the CATSI Act for the title to be held in trust by the Aboriginal corporation.19 The native title holdingcommunity can then use the corporation to manage their interests in regard to the land; to receive benefits; to negotiate; to undertake activities; to protect their heritage; and to do other actions that a legal entity is capable of doing in regard to their native title. The community as native title-owners therefore becomes incorporated

*DOI: http://dx.doi.org/10.5772/intechopen.86622*

<sup>15</sup> To the example of Hungary can be added the recent developments in regard to cultural autonomy in Russia, Estonia, Kosovo, Hungary, Slovenia, Macedonia and Croatia. Malloy describes the range of mechanisms enacted in Slovenia for the purpose of protecting the rights of the two co-nations, Hungarian and Italian, as "an instructive example of how co-nation consociationalism might work." The arrangements include collective autonomy on the basis of a mix of territorial and cultural autonomy; participation in joint structures, mutual veto's in certain circumstances and special rights in regard to local self-government and care of the matters that affect their lives most intimately.

<sup>16</sup> Indigenous People may also incorporate organisations under other legislation, but the CATSI Act establishes a special basis for information and provides support to communities. The objectives of Corporations can be varied, including social, cultural, linguistic and/or economic objectives.

#### *Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous… DOI: http://dx.doi.org/10.5772/intechopen.86622*

corporations.17 Only Aboriginal people may register a corporation under the CATSI Act and the name of the corporation must include "Aboriginal" or/and a "Torres Strait."18 Around 3000 Aboriginal corporations have been registered.

Registration of an Aboriginal corporation is open to any Aboriginal community, but for relevance of this chapter is that an Aboriginal community who has had a successful claim for native title, *must* be incorporated under the CATSI Act for the title to be held in trust by the Aboriginal corporation.19 The native title holdingcommunity can then use the corporation to manage their interests in regard to the land; to receive benefits; to negotiate; to undertake activities; to protect their heritage; and to do other actions that a legal entity is capable of doing in regard to their native title. The community as native title-owners therefore becomes incorporated for purposes of managing and controlling their native title rights.

All Aboriginal corporations, including the Noongar Corporations, operate within the sphere of private law; the corporation is a legal person that can sue and be sued; the corporation is liable only to its members; and the services are offered to members of the corporation wherever they reside.20

These corporations under the CATSI Act can be used for a form of autonomy or self-management within the sphere of private law, whereby the corporation can provide a wide range of cultural, linguistic, social and other services to its members. As is explained in more detail below, the Noongar people have established seven Aboriginal corporations under the CATSI Act to manage the native title settlement they have reached with the state government of Western Australia in a manner that bears the potential of far reaching privatised self-government.

The success of Aboriginal people to claim native title has been pivotal to their desire for self-determination in general, and autonomy in particular. Although the *United Nations International Declaration on the Rights of Indigenous People* does not prescribe what is meant by "self-determination," it is accepted that restoration of land rights and greater control over traditional lands are essential elements for self-determination. Access to land and restoration of rights in land constitute a basis whereupon other elements of self-determination such as autonomy, self-government, social justice, and reparation can be pursued [23].21

Aboriginal people have had a long and arduous struggle for land rights. The philosophy of the original settlers was that Australia was *terra nullius*, or no persons land, and therefore there was no need for the settlers or their successors to enter into any treaty or to reach any terms of settlement with the Aboriginal people they encountered. This view prevailed for close to two centuries after settlement. In *Milirrpum* v *Nabalco Pty Ltd* matter the question of "native title" was raised for the first time in Australia, but the court found that the Aboriginal people at the time of settlement was so uncivilised and primitive that no coherent form of proprietary

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

application of non-territorial autonomy to minority groups:

*concerned [18]." (author emphasis).*

*Islander) Act 124 of 2006* (CATSI Act).

language or religion cannot in all circumstances be solely based on territorial arrangements [13–16]. Hofmann observes as follows in regard to the practical

*"Generally speaking, the concepts of cultural autonomy or functional layering of public authority may be usefully applied in situations where a minority does not constitute the majority or a sizable minority of the population in a given region of a state but finds itself dispersed throughout the whole of a state. In such a situation (e.g., Hungary) [17]15 have opted for the introduction of a system endowing institutions established under public law with the power to regulate or at least to have a most significant say in the regulation of—"cultural affairs," including, in particular, the running of public education institutions, such as Kindergardens and schools, or the management of their own cultural institutions and media, such a publically funded radio and TV broadcasting programmes. The important aspect here is the fact that minorities exercise, in the fields concerned, some kind of self-government—usually through representative bodies, the members of which are elected by and from the members of the minority* 

Self-government and autonomy for Aboriginal people in Australia generally fall substantially short of arrangements that have been made in some other countries where the rights and aspirations indigenous people had to be accommodated. The examples set by the Bidyadanga community and the Noongar people may however

The advent of native title in 1992 in Australia has established a potential base whereupon Aboriginal communities who have instituted successful land claims, can develop limited non-governmental forms of self-government by way of the corporations registered pursuant to the federal *Corporations (Aboriginal and Torres Strait* 

The CATSI Act is specifically designed to provide a legal mechanism for Aboriginal people to register a corporation that can manage and control their own affairs [19].16 Corporations under the CATSI Act are easy to establish by way of a template; the corporation must be not for profit; the members receive free legal advice; and the corporation operates under the supervision of a federal registrar of Aboriginal corporations. Federal funds are also made available to assist in the management of the corporations; to ensure transparency of activities of corporations; proper recordkeeping; and implement proper corporate governance procedures by

<sup>15</sup> To the example of Hungary can be added the recent developments in regard to cultural autonomy in Russia, Estonia, Kosovo, Hungary, Slovenia, Macedonia and Croatia. Malloy describes the range of mechanisms enacted in Slovenia for the purpose of protecting the rights of the two co-nations, Hungarian and Italian, as "an instructive example of how co-nation consociationalism might work." The arrangements include collective autonomy on the basis of a mix of territorial and cultural autonomy; participation in joint structures, mutual veto's in certain circumstances and special rights in regard to

<sup>16</sup> Indigenous People may also incorporate organisations under other legislation, but the CATSI Act establishes a special basis for information and provides support to communities. The objectives of Corporations can be varied, including social, cultural, linguistic and/or economic objectives.

local self-government and care of the matters that affect their lives most intimately.

provide fresh benchmarks for other Aboriginal communities to follow.

**4. Land rights as an avenue to** *privatised* **autonomy**

**132**

<sup>17</sup> See the on-line tools to assist members of Aboriginal corporations to manage their affairs under the [20].

<sup>18</sup> The Registrar receives annual reports from corporations; ensures compliance with the CATSI Act; and may even prosecute if there had been failure to comply with the provisions of the CATSI Act. For more information see [21].

<sup>19</sup> The federal *Native Title Act 1993* mandates that upon successful determination of a claim for native title, the title is held in trust by an Aboriginal corporation. See office of Registrar of Aboriginal Corporations, [22]. <sup>20</sup> See [7] for a brief comparison between the Aboriginal corporations in Australia and the non-governmental cultural associations that can be established under Russian law.

<sup>21</sup> The concept "self-determination" is fluid. In its most general application it includes political and administrative rights; powers-sharing and self-government, land rights and control over natural resources; and consultative rights. Tomaselli refers to the various facets of self-determination collectively as "composite rights."

title to land existed [24]. The court therefore continued to give effect to the opinion of the original settlers that Australia was for all practical purposes unoccupied by any society capable of entering into a treaty or agreement.

The antiquated and racist approach expressed in Milirrpum caused serious embarrassment to Australia in international fora and in its domestic relationship with Aboriginal people. There was however no appetite in the general electorate to pursue a land reform scheme to address the concerns of Aboriginal people.

The High Court of Australia ultimately broke the mould of the *terra nullius*–doctrine when in 1992 it relied on developments in international law and on advanced in anthropological research to find in the Mabo-judgement that native title continued to exist in Australia. In the Mabo decision the court accepted that the common law had to adjust by acknowledging the native title of Aboriginal communities in circumstances where "a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence [25]." Native title, in effect, continues to exist in Australia unless it had been extinguished by some act of government (for example, granting of freehold).

The essence of the judgement for purposes of this chapter was that for the first time the judiciary accepted that Aboriginal people prior to colonisation had systematic and coherent systems of laws and customs according to which they managed their society; their country; their traditions and social relationships and that those systems in some instances continue to be adhered to.22 The Noongar settlement attempts to restore aspects of those traditional systems of government within a modern day context.

The *Native Title Act (1993)* was enacted by the federal parliament to provide a statutory base for native title to be claimed; for claims to be registered; for native title to be held by an Aboriginal corporation; and for matters associated therewith. The Native Title Act was never intended for native title to provide basis for autonomy of self-government.23 Native title is seen as a "bundle of rights" which relate principally to the proprietary interests an Aboriginal community has in land, for example, caring of country, but not to self-government or autonomy as understood in a public law sense.

Although the advent of native title was initially widely praised by Aboriginal people, scepticism and disappointment soon set in due to the complex and adversarial process to prove native title; the opposition to native title claims by governments, pastoralists and resource companies; the limited scope of the bundle rights once determined; the lack of practical benefits that arise from native title; the inability of native title to address wider socio-economic and social justice needs; and unfulfilled reparation demands of Aboriginal people [29, 30]. Barrie comments that the "initial optimism [after Mabo] in aboriginal communities has changed to

**135**

enous people.

*Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous…*

frustration and disillusionment [31]." Kelly describes the rights gained under native

It is accepted that the determination of a valid native title claim does not challenge the sovereignty of the Constitution and therefore does not give to the Aboriginal community a right to sovereignty, autonomy or self-government under common law over the land affected. Self-government and autonomy under public

Where does this conundrum leave Aboriginal people's desire to self-govern? The option that arguably bears the most potential for autonomy is for Aboriginal people to utilise the provisions of the CATSI Act to establish a private corporation for a specific community and for that corporation to undertake activities; develop proposals; offer programmes; make policy inputs; undertake lobbying; and deliver services that are relevant to the members of the community. Although more than 3000 Aboriginal corporations have been registered under the CATSI Act, the 7 Noongar corporations registered pursuant to the Noongar Settlement are probably the most advanced as far as self-governing potential and competencies are concerned.

The success achieved in native title may therefore provide a basis for Aboriginal communities to privatise self-government and autonomy to the community that are the native title holders. In this way autonomy of a personal rather than a territorial jurisdiction can be achieved albeit in civil law rather than public law. The sovereignty of the Constitution therefore remains unchallenged, but through private initiative supported by privatisation and agency arrangements, an Aboriginal corporation can become a *de facto* government with non-territorial jurisdiction.

**5. Territorial autonomy—managing (small parcels) community land**

There is no general legislative or policy scheme in Australia for Aboriginal people to become autonomous or self-governing in a manner akin to territorial arrangements in the USA, Finland and Canada with respect to reserves for indig-

The state of Western Australia has, however, enacted legislation that gives Aboriginal communities at a local level the ability to self-govern in regard to matters that impact on their communal land, in regard to who accesses the land, and in regard to matters of importance to their local community. The *Aboriginal Communities Act 1979* (WA) is aimed to assist Aboriginal communities to manage and control their community land [33]. "Aboriginal community" refers to the "original inhabitants of Australia and to their descendants [34]." The question whether a person is "Aboriginal" is resolved by way of an objective and subjective test, namely that the person must be descended from the "original inhabitants of Australia" and must be "accepted as such in the community in which he lives [35]." The Aboriginal Communities Act empowers the state government of Western Australia to declare that the Act applies to a specific community, but only if the government is satisfied that the community has a constitution under which it operates; if there is a proper consultative mechanism to ascertain the views of community members; and if there is a desire of the community to be responsible for local self-government.25 When the government declares that the Act applies to a particular community, the proclamation also identifies the community land to

<sup>25</sup> a4(2) Aboriginal Communities Act. The government may also revoke the application of the Act to a specific community if the government is of the view that the community no longer operates within the

<sup>24</sup> Native title rights have been described as "hollow and fragile."

framework of its constitution a5(2) Aboriginal Communities Act.

*DOI: http://dx.doi.org/10.5772/intechopen.86622*

law can only be bestowed under the Constitution.

title as "hollow and fragile" [32].24

<sup>22</sup> The Court [26] observed that the original settlers "were ignorant of the fact that, under pre-existing local law or custom, particular tribes or clans had established entitlements to the occupation and use of particular areas of land," but increasingly a realisation developed about the social cohesion and organisation albeit that no title to land was recognised.

<sup>23</sup> In Mabo the court ruled by way of obiter that native title does not deliver "sovereignty" to the claimants and hence that the rights recognised under native title do not challenge the sovereignty of the Crown in regard to the governance of Australia under the Constitution. See [27] 53 ALRJ 403 at 408. For discussion about the pre-colonial sovereignty exercised by Aboriginal people and the impact thereupon by colonisation since no treaty had been entered into and the potential remnants of such sovereignty, refer to [28].

*Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous… DOI: http://dx.doi.org/10.5772/intechopen.86622*

frustration and disillusionment [31]." Kelly describes the rights gained under native title as "hollow and fragile" [32].<sup>24</sup>

It is accepted that the determination of a valid native title claim does not challenge the sovereignty of the Constitution and therefore does not give to the Aboriginal community a right to sovereignty, autonomy or self-government under common law over the land affected. Self-government and autonomy under public law can only be bestowed under the Constitution.

Where does this conundrum leave Aboriginal people's desire to self-govern?

The option that arguably bears the most potential for autonomy is for Aboriginal people to utilise the provisions of the CATSI Act to establish a private corporation for a specific community and for that corporation to undertake activities; develop proposals; offer programmes; make policy inputs; undertake lobbying; and deliver services that are relevant to the members of the community. Although more than 3000 Aboriginal corporations have been registered under the CATSI Act, the 7 Noongar corporations registered pursuant to the Noongar Settlement are probably the most advanced as far as self-governing potential and competencies are concerned.

The success achieved in native title may therefore provide a basis for Aboriginal communities to privatise self-government and autonomy to the community that are the native title holders. In this way autonomy of a personal rather than a territorial jurisdiction can be achieved albeit in civil law rather than public law. The sovereignty of the Constitution therefore remains unchallenged, but through private initiative supported by privatisation and agency arrangements, an Aboriginal corporation can become a *de facto* government with non-territorial jurisdiction.

#### **5. Territorial autonomy—managing (small parcels) community land**

There is no general legislative or policy scheme in Australia for Aboriginal people to become autonomous or self-governing in a manner akin to territorial arrangements in the USA, Finland and Canada with respect to reserves for indigenous people.

The state of Western Australia has, however, enacted legislation that gives Aboriginal communities at a local level the ability to self-govern in regard to matters that impact on their communal land, in regard to who accesses the land, and in regard to matters of importance to their local community. The *Aboriginal Communities Act 1979* (WA) is aimed to assist Aboriginal communities to manage and control their community land [33]. "Aboriginal community" refers to the "original inhabitants of Australia and to their descendants [34]." The question whether a person is "Aboriginal" is resolved by way of an objective and subjective test, namely that the person must be descended from the "original inhabitants of Australia" and must be "accepted as such in the community in which he lives [35]."

The Aboriginal Communities Act empowers the state government of Western Australia to declare that the Act applies to a specific community, but only if the government is satisfied that the community has a constitution under which it operates; if there is a proper consultative mechanism to ascertain the views of community members; and if there is a desire of the community to be responsible for local self-government.25 When the government declares that the Act applies to a particular community, the proclamation also identifies the community land to

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

any society capable of entering into a treaty or agreement.

people.

of freehold).

modern day context.

in a public law sense.

tion albeit that no title to land was recognised.

title to land existed [24]. The court therefore continued to give effect to the opinion of the original settlers that Australia was for all practical purposes unoccupied by

The antiquated and racist approach expressed in Milirrpum caused serious embarrassment to Australia in international fora and in its domestic relationship with Aboriginal people. There was however no appetite in the general electorate to pursue a land reform scheme to address the concerns of Aboriginal

The High Court of Australia ultimately broke the mould of the *terra nullius*–doctrine when in 1992 it relied on developments in international law and on advanced in anthropological research to find in the Mabo-judgement that native title continued to exist in Australia. In the Mabo decision the court accepted that the common law had to adjust by acknowledging the native title of Aboriginal communities in circumstances where "a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence [25]." Native title, in effect, continues to exist in Australia unless it had been extinguished by some act of government (for example, granting

The essence of the judgement for purposes of this chapter was that for the first time the judiciary accepted that Aboriginal people prior to colonisation had systematic and coherent systems of laws and customs according to which they managed their society; their country; their traditions and social relationships and that those systems in some instances continue to be adhered to.22 The Noongar settlement attempts to restore aspects of those traditional systems of government within a

The *Native Title Act (1993)* was enacted by the federal parliament to provide a statutory base for native title to be claimed; for claims to be registered; for native title to be held by an Aboriginal corporation; and for matters associated therewith. The Native Title Act was never intended for native title to provide basis for autonomy of self-government.23 Native title is seen as a "bundle of rights" which relate principally to the proprietary interests an Aboriginal community has in land, for example, caring of country, but not to self-government or autonomy as understood

Although the advent of native title was initially widely praised by Aboriginal people, scepticism and disappointment soon set in due to the complex and adversarial process to prove native title; the opposition to native title claims by governments, pastoralists and resource companies; the limited scope of the bundle rights once determined; the lack of practical benefits that arise from native title; the inability of native title to address wider socio-economic and social justice needs; and unfulfilled reparation demands of Aboriginal people [29, 30]. Barrie comments that the "initial optimism [after Mabo] in aboriginal communities has changed to

<sup>22</sup> The Court [26] observed that the original settlers "were ignorant of the fact that, under pre-existing local law or custom, particular tribes or clans had established entitlements to the occupation and use of particular areas of land," but increasingly a realisation developed about the social cohesion and organisa-

<sup>23</sup> In Mabo the court ruled by way of obiter that native title does not deliver "sovereignty" to the claimants and hence that the rights recognised under native title do not challenge the sovereignty of the Crown in regard to the governance of Australia under the Constitution. See [27] 53 ALRJ 403 at 408. For discussion about the pre-colonial sovereignty exercised by Aboriginal people and the impact thereupon by colonisation since no treaty had been entered into and the potential remnants of such sovereignty, refer to [28].

**134**

<sup>24</sup> Native title rights have been described as "hollow and fragile."

<sup>25</sup> a4(2) Aboriginal Communities Act. The government may also revoke the application of the Act to a specific community if the government is of the view that the community no longer operates within the framework of its constitution a5(2) Aboriginal Communities Act.

#### *Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

which the declaration applies.26 This is, in effect and albeit only at a community level, an example of territorial self-government for an Aboriginal community.

If the Aboriginal Communities Act applies to a community, the council of the community may make by-laws similar to those of a local government in regard to the matters that falls within its competence. The community therefore has a status as "government," and not merely as a private association that organises its own cultural affairs.

The Aboriginal Communities Act does not prescribe how a community council is to be nominated or elected. It is left to the community to devise a structure that reflects their culture and customs and to request the government to recognise the constitution pursuant to the Aboriginal Communities Act. The government must, however, be satisfied that the council in effect is responsible and accountable to its community, regardless of the system of representation that is used. Decisionmaking within the council is by way of an absolute majority. Once a decision is made, it is submitted to the government and when it is published in the Government Gazette is becomes a formal by-law of the community.27 The by-laws are limited to the lands of the community and persons who reside on the land or visit the land.

Some of the typical functions that fall within the powers of an Aboriginal community council in regards to its lands are: regulation of people, vehicles and animals; management of animals and vegetation; development and maintenance of infrastructure; management of community meetings; regulation of alcohol and firearms; regulating conduct; and any other matter of relevance to the decency, order and good conduct in the community.28 The community council may also authorise the police to enter the lands of the community and to enforce the by-laws.

One of the Aboriginal communities in the state of Western Australia that has taken up the self-government option under the Aboriginal Communities Act is the Bidyadanga Aboriginal Community. The community lives in the Broome area, which is about 1600 km to the north of Perth in the Kimberley remote area of the state [36]. The community numbers around 800 persons and is considered as one of the most remote Aboriginal communities in Australia. The community comprises persons from four different language groups.29 The community self-manages principally by way of government grants and income derived from commercial activities on their land. The council of the community comprises two persons from each language group and elections are held every 3 years.

The community enacted by-laws for self-government in 2004 [37]. The by-laws determine that all persons, Aboriginal or not, are bound by the by-laws when they enter or reside on the land of the community.30 The community established an association which is responsible for the practical government of the land. All Aboriginal people who originate from the land may be a member of the association. The association elects a council to be responsible for the day to day government of the land.31 The council have wide governing powers that include organising access to the land; identification of places where no access is allowed because of cultural significance; traffic and driving regulations; general conduct rules; and firearms registration and control. 32

**137**

**6.1 Background**

language groupings.

*Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous…*

The association formed by the community pursuant to the *Associations Incorporations Act (WA)* regulates matters such as a council; membership; meetings and the general operations of the community.33 The objects of the association include general support of the community; provision of education and employment opportunities; assist and encourage member to promote their culture; and to seek and receive grants for its operations.34 Membership of the association is open to any Aboriginal person who resides in the community.35 A governing council that comprises between 5 and 10 members is responsible for the day to day management of the association. Each of the language groups must be represented by at least two persons in the council.36 The council may appoint employees and an executive officer to undertake practical management and operational activities. The association must meet at least once per year, but special meetings may also be convened.37 The association operates like a local government with a territorial jurisdiction that includes cultural objectives. It provides municipal services to the community, including services such as road maintenance; landscaping; pet control and other essential services. In addition, the association has a partnership with the local school to offer culturally appropriate courses. Various other cultural activities are also on offer for the community. The association also provides home-based support

The Bidyadanga arrangement is one of only a few examples, in Australia where an Aboriginal community can self-govern on a territorial basis. The remote location of the community and the fact that the community resides on their traditional lands have contributed to the arrangement receiving government support. No similar arrangement can be pursued in urban areas since Aboriginal people live inter-

The experience of the Bidyadanga highlights the benefits that may arise when native title is determined and a community lives on their traditional lands. The territorial dimension does facilitate self-government since the jurisdiction of the association can be clearly defined over a certain territory; services with a territorial component can be delivered; and all individuals entering into the territory are bound by the by-laws. On the other hand, it must be noted that few Aboriginal communities reside on their traditional laws; even those who live on traditional lands may not have exclusive control over the land; many Aboriginal people have urbanised or live intermingled with the rest of the population; and as a result territorial forms of autonomy are not appropriate for the vast majority of Aboriginal people.

**6. The path for the Noongar people to the Noongar settlement**

The Noongar people live predominantly in the south west part of the state of Western Australia. This has been the traditional land of the Noongar people but their sovereignty over the land has been highly impacted by events that, according to Mabo, extinguished native title, for example, granting of freehold land in cities;

<sup>33</sup> *Constitution and Rules of the Association Bidyadanga Aboriginal Community La Grange Inc*. (Constitution of the Bidyadanga community). The articles of incorporation are under review at the time of writing.

<sup>35</sup> r 8 Constitution of the Bidyadanga community. The person must also be a member of one of the

*DOI: http://dx.doi.org/10.5772/intechopen.86622*

services such as meals on wheels and poverty relief.

mingled with other communities.

<sup>34</sup> r 6.1 Constitution of the Bidyadanga community.

<sup>36</sup> r 9 Constitution of the Bidyadanga community. <sup>37</sup> r 15 Constitution of the Bidyadanga community.

<sup>26</sup> a6 Aboriginal Communities Act.

<sup>27</sup> a8 Aboriginal Communities Act.

<sup>28</sup> a7 Aboriginal Communities Act.

<sup>29</sup> Karajarri, Juwalinny, Mangala, Nyungamarta and Yulpartja Aboriginal language groupings.

<sup>30</sup> By-law 1(5) Bidyadanga Community By-laws. Non-Aboriginal persons may only enter the land with approval or a permit. By-law 4 Bidyadanga Community By-laws.

<sup>31</sup> By-law 3 Bidyadanga Community By-laws.

<sup>32</sup> By-laws 4–11 Bidyadanga Community By-laws.

*Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous… DOI: http://dx.doi.org/10.5772/intechopen.86622*

The association formed by the community pursuant to the *Associations Incorporations Act (WA)* regulates matters such as a council; membership; meetings and the general operations of the community.33 The objects of the association include general support of the community; provision of education and employment opportunities; assist and encourage member to promote their culture; and to seek and receive grants for its operations.34 Membership of the association is open to any Aboriginal person who resides in the community.35 A governing council that comprises between 5 and 10 members is responsible for the day to day management of the association. Each of the language groups must be represented by at least two persons in the council.36 The council may appoint employees and an executive officer to undertake practical management and operational activities. The association must meet at least once per year, but special meetings may also be convened.37

The association operates like a local government with a territorial jurisdiction that includes cultural objectives. It provides municipal services to the community, including services such as road maintenance; landscaping; pet control and other essential services. In addition, the association has a partnership with the local school to offer culturally appropriate courses. Various other cultural activities are also on offer for the community. The association also provides home-based support services such as meals on wheels and poverty relief.

The Bidyadanga arrangement is one of only a few examples, in Australia where an Aboriginal community can self-govern on a territorial basis. The remote location of the community and the fact that the community resides on their traditional lands have contributed to the arrangement receiving government support. No similar arrangement can be pursued in urban areas since Aboriginal people live intermingled with other communities.

The experience of the Bidyadanga highlights the benefits that may arise when native title is determined and a community lives on their traditional lands. The territorial dimension does facilitate self-government since the jurisdiction of the association can be clearly defined over a certain territory; services with a territorial component can be delivered; and all individuals entering into the territory are bound by the by-laws. On the other hand, it must be noted that few Aboriginal communities reside on their traditional laws; even those who live on traditional lands may not have exclusive control over the land; many Aboriginal people have urbanised or live intermingled with the rest of the population; and as a result territorial forms of autonomy are not appropriate for the vast majority of Aboriginal people.

#### **6. The path for the Noongar people to the Noongar settlement**

#### **6.1 Background**

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

each language group and elections are held every 3 years.

approval or a permit. By-law 4 Bidyadanga Community By-laws.

The community enacted by-laws for self-government in 2004 [37]. The by-laws

determine that all persons, Aboriginal or not, are bound by the by-laws when they enter or reside on the land of the community.30 The community established an association which is responsible for the practical government of the land. All Aboriginal people who originate from the land may be a member of the association. The association elects a council to be responsible for the day to day government of the land.31 The council have wide governing powers that include organising access to the land; identification of places where no access is allowed because of cultural significance; traffic and driving regulations; general conduct rules; and firearms

<sup>29</sup> Karajarri, Juwalinny, Mangala, Nyungamarta and Yulpartja Aboriginal language groupings. <sup>30</sup> By-law 1(5) Bidyadanga Community By-laws. Non-Aboriginal persons may only enter the land with

cultural affairs.

which the declaration applies.26 This is, in effect and albeit only at a community level, an example of territorial self-government for an Aboriginal community. If the Aboriginal Communities Act applies to a community, the council of the community may make by-laws similar to those of a local government in regard to the matters that falls within its competence. The community therefore has a status as "government," and not merely as a private association that organises its own

The Aboriginal Communities Act does not prescribe how a community council is to be nominated or elected. It is left to the community to devise a structure that reflects their culture and customs and to request the government to recognise the constitution pursuant to the Aboriginal Communities Act. The government must, however, be satisfied that the council in effect is responsible and accountable to its community, regardless of the system of representation that is used. Decisionmaking within the council is by way of an absolute majority. Once a decision is made, it is submitted to the government and when it is published in the Government Gazette is becomes a formal by-law of the community.27 The by-laws are limited to the lands of the community and persons who reside on the land or visit the land. Some of the typical functions that fall within the powers of an Aboriginal community council in regards to its lands are: regulation of people, vehicles and animals; management of animals and vegetation; development and maintenance of infrastructure; management of community meetings; regulation of alcohol and firearms; regulating conduct; and any other matter of relevance to the decency, order and good conduct in the community.28 The community council may also authorise the police to enter the lands of the community and to enforce the by-laws. One of the Aboriginal communities in the state of Western Australia that has taken up the self-government option under the Aboriginal Communities Act is the Bidyadanga Aboriginal Community. The community lives in the Broome area, which is about 1600 km to the north of Perth in the Kimberley remote area of the state [36]. The community numbers around 800 persons and is considered as one of the most remote Aboriginal communities in Australia. The community comprises persons from four different language groups.29 The community self-manages principally by way of government grants and income derived from commercial activities on their land. The council of the community comprises two persons from

**136**

registration and control. 32

<sup>26</sup> a6 Aboriginal Communities Act. <sup>27</sup> a8 Aboriginal Communities Act. <sup>28</sup> a7 Aboriginal Communities Act.

<sup>31</sup> By-law 3 Bidyadanga Community By-laws. <sup>32</sup> By-laws 4–11 Bidyadanga Community By-laws.

The Noongar people live predominantly in the south west part of the state of Western Australia. This has been the traditional land of the Noongar people but their sovereignty over the land has been highly impacted by events that, according to Mabo, extinguished native title, for example, granting of freehold land in cities;

<sup>33</sup> *Constitution and Rules of the Association Bidyadanga Aboriginal Community La Grange Inc*. (Constitution of the Bidyadanga community). The articles of incorporation are under review at the time of writing.

<sup>34</sup> r 6.1 Constitution of the Bidyadanga community.

<sup>35</sup> r 8 Constitution of the Bidyadanga community. The person must also be a member of one of the language groupings.

<sup>36</sup> r 9 Constitution of the Bidyadanga community.

<sup>37</sup> r 15 Constitution of the Bidyadanga community.

towns; industrial areas, farms and infrastructure development. Only relatively small pockets of native title remain in the area since on so much of native title had been extinguished.

The different communities that make up the Noongar people lodged claims for native title over different parts of the south west area. After protracted litigation and negotiation a settlement was reached whereby all the native title claims where relinquished in exchange of a package of rights and benefits for the entire area.

This settlement is the most ambitious yet in Australia and provides a benchmark not only for other Aboriginal communities in Australia but also for indigenous people and minority groups in other parties of the world. The settlement has been described as the first "treaty" between Aboriginal people and an Australian government since it aims to rectify an injustice that has been ongoing since the time of colonial settlement [3].38 It must however be noted that the treaty-power of the Constitution falls within the ambit of the federal government, which means that the Noongar Settlement may in literature be described as a "treaty," but at law it is a native title settlement pursuant to the Native Title Act [38]. The Settlement can best be described as a statutory contract, which given the subject matter is seeks to regulate, is akin to a constitution for the Noongar people. The settlement provides for a wide spectrum of benefits, self-governance and autonomy which, according to this chapter, constitutes a form of privatised autonomy not previously seen in Australia.

#### **6.2 Profile of the Noongar people and their land**

The Noongar people comprise several sub-communities or family groups whose apical ancestors lived in the south west area at the time of arrival by the settlers. The Noongar people currently number around 30,000. The larger community comprise 14 different language groups which pursuant to the Settlement are for practical reasons organised into six sub-communities, each with an area of land for which they are responsible.39 It is estimated that the forebears of the Noongar people had been in occupation of the area for more than 45,000 years [39].

Since the area occupied by the Noongar people is large with diverse vegetation; climate; geography and rainfall, the respective communities that make up the Noongar had different practices in regard to the land they occupied albeit that they were also related to one another and shared common customs and language that separated them from other neighbouring Aboriginal communities. Noongar communities that lived close to the ocean had as their main source of food the ocean and river and estuary systems that ran into the ocean, whereas other communities lived in semi-arid areas, while others where principally forest dwellers. Although the Noongar community was bound together by language, ancestry, customs and traditional laws, the respective groupings had their own sub-regional customs and responsibilities to the land they occupied. The association of families with a particular part of country has remained intact albeit that urbanisation, mining and agricultural developments have had a massive disruptive impact on the traditional living patterns [40].

Whereas early white settlers where of the view that Aboriginal people in general were hunter-gatherers who endlessly roamed the country without any specific

**139**

Greece. See [42].

*Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous…*

pattern, social organisation or area where they called "home," contemporary research shows that although the communities hunted and collected to feed themselves and traversed widely, they were generally located in a certain area which they regarded as their country and for which they had responsibility. Their understanding of land ownership was not that the land belonged to them, but rather than they

The Noongar view of ownership or control of land is summarised in the follow-

*"Traditional Noongar rights and interests in boodja (country) are not the same as the Western concept of land ownership. For Noongar people, to have connection to country is to have a responsibility to the land. Duties and responsibilities for country also include protecting sites of spiritual significance and family heritage. Different Noongar groups have custodial status over certain parts of the south-west. Within these areas are moort boodja or family runs. These are the areas in which Noongar family groups traditionally travel and enjoy special privileges relating to that part of our country. We consider it our traditional land owner's right to have use and access to these areas. Those who do not share rights in that part of the land should seek permission before they enter or use it. Traditional Noongar lore and custom does not dictate that custodians remain permanently within their territorial borders to be on country. Traditionally, Noongar people travelled widely and we accepted that our territories would be occupied by others during our absence [41]."*

The area affected by the Noongar settlement is about 200,000 square kilometres in size40 and it covers the entire south-west of the State of Western Australia [43].41 Within the area are major cities and towns, for example, Perth, Geraldton, Albany, Bunbury and Margaret River. In excess of 2 million people live in the area, of which

The challenge for policy makers and the Noongar people at the time when the settlement of the native title claims was negotiated was therefore obvious: how does one within an area that is occupied by so many non-Noongar people and where the traditional livings and customary patterns of the Noongar people had been to fundamentally been impacted upon by settlement and subsequent events, make legal, financial and practical arrangements for the Noongar people to protect and promote their language, culture, traditions and customs for purposes of a form of

The enactment of the Native Title Act in 1993 gave rise to several native title claims being lodged in the south west area of Western Australia. The various claims sought to represent the interests of the respective family groupings that make up the Noongar people. Many of the claims were overlapping and competing with around 78 claims lodged for parts of what is now the single Noongar area.42 This was not dissimilar to many other parts of Australia where the introduction of native title saw a scramble to lodge claims. This process took some time to settle across Australia

<sup>40</sup> This is larger than the territory of countries such as Belgium; Ireland, Austria, Portugal, Hungary and

<sup>42</sup> Ultimately the single Noongar claim was lodged to represent around 218 families, and substituting six

*DOI: http://dx.doi.org/10.5772/intechopen.86622*

belonged to the land and had to take care of it.

around 30,000 are Noongar.

**6.3 Noongar native title claims**

and for claims to be combined and harmonised.

<sup>41</sup> See enclosed map of the area at Annexure 1.

registered and 12 unregistered claims.

self-government?

ing way:

<sup>38</sup> H. Hobbs and G. Williams the authors conclude that the Noongar Settlement can be described as in its very nature a "classic treaty" which implies "a coming together between two nations to agree on certain things, and in doing so, finding a way forward together and recognising each other's sovereignty." (p. 23). <sup>39</sup> The six communities are: Ballardong, Gnaala Karla Booja, South West Boojarah, Wagyl Kaip & Southern Noongar, Whadjuk and Yued groups.

*Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous… DOI: http://dx.doi.org/10.5772/intechopen.86622*

pattern, social organisation or area where they called "home," contemporary research shows that although the communities hunted and collected to feed themselves and traversed widely, they were generally located in a certain area which they regarded as their country and for which they had responsibility. Their understanding of land ownership was not that the land belonged to them, but rather than they belonged to the land and had to take care of it.

The Noongar view of ownership or control of land is summarised in the following way:

*"Traditional Noongar rights and interests in boodja (country) are not the same as the Western concept of land ownership. For Noongar people, to have connection to country is to have a responsibility to the land. Duties and responsibilities for country also include protecting sites of spiritual significance and family heritage. Different Noongar groups have custodial status over certain parts of the south-west. Within these areas are moort boodja or family runs. These are the areas in which Noongar family groups traditionally travel and enjoy special privileges relating to that part of our country. We consider it our traditional land owner's right to have use and access to these areas. Those who do not share rights in that part of the land should seek permission before they enter or use it. Traditional Noongar lore and custom does not dictate that custodians remain permanently within their territorial borders to be on country. Traditionally, Noongar people travelled widely and we accepted that our territories would be occupied by others during our absence [41]."*

The area affected by the Noongar settlement is about 200,000 square kilometres in size40 and it covers the entire south-west of the State of Western Australia [43].41 Within the area are major cities and towns, for example, Perth, Geraldton, Albany, Bunbury and Margaret River. In excess of 2 million people live in the area, of which around 30,000 are Noongar.

The challenge for policy makers and the Noongar people at the time when the settlement of the native title claims was negotiated was therefore obvious: how does one within an area that is occupied by so many non-Noongar people and where the traditional livings and customary patterns of the Noongar people had been to fundamentally been impacted upon by settlement and subsequent events, make legal, financial and practical arrangements for the Noongar people to protect and promote their language, culture, traditions and customs for purposes of a form of self-government?

#### **6.3 Noongar native title claims**

The enactment of the Native Title Act in 1993 gave rise to several native title claims being lodged in the south west area of Western Australia. The various claims sought to represent the interests of the respective family groupings that make up the Noongar people. Many of the claims were overlapping and competing with around 78 claims lodged for parts of what is now the single Noongar area.42 This was not dissimilar to many other parts of Australia where the introduction of native title saw a scramble to lodge claims. This process took some time to settle across Australia and for claims to be combined and harmonised.

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

**6.2 Profile of the Noongar people and their land**

been in occupation of the area for more than 45,000 years [39].

been extinguished.

Australia.

towns; industrial areas, farms and infrastructure development. Only relatively small pockets of native title remain in the area since on so much of native title had

not only for other Aboriginal communities in Australia but also for indigenous people and minority groups in other parties of the world. The settlement has been described as the first "treaty" between Aboriginal people and an Australian government since it aims to rectify an injustice that has been ongoing since the time of colonial settlement [3].38 It must however be noted that the treaty-power of the Constitution falls within the ambit of the federal government, which means that the Noongar Settlement may in literature be described as a "treaty," but at law it is a native title settlement pursuant to the Native Title Act [38]. The Settlement can best be described as a statutory contract, which given the subject matter is seeks to regulate, is akin to a constitution for the Noongar people. The settlement provides for a wide spectrum of benefits, self-governance and autonomy which, according to this chapter, constitutes a form of privatised autonomy not previously seen in

The different communities that make up the Noongar people lodged claims for native title over different parts of the south west area. After protracted litigation and negotiation a settlement was reached whereby all the native title claims where relinquished in exchange of a package of rights and benefits for the entire area.

This settlement is the most ambitious yet in Australia and provides a benchmark

The Noongar people comprise several sub-communities or family groups whose apical ancestors lived in the south west area at the time of arrival by the settlers. The Noongar people currently number around 30,000. The larger community comprise 14 different language groups which pursuant to the Settlement are for practical reasons organised into six sub-communities, each with an area of land for which they are responsible.39 It is estimated that the forebears of the Noongar people had

Since the area occupied by the Noongar people is large with diverse vegetation; climate; geography and rainfall, the respective communities that make up the Noongar had different practices in regard to the land they occupied albeit that they were also related to one another and shared common customs and language that separated them from other neighbouring Aboriginal communities. Noongar communities that lived close to the ocean had as their main source of food the ocean and river and estuary systems that ran into the ocean, whereas other communities lived in semi-arid areas, while others where principally forest dwellers. Although the Noongar community was bound together by language, ancestry, customs and traditional laws, the respective groupings had their own sub-regional customs and responsibilities to the land they occupied. The association of families with a particular part of country has remained intact albeit that urbanisation, mining and agricultural developments have had a massive disruptive impact on the traditional

Whereas early white settlers where of the view that Aboriginal people in general

<sup>38</sup> H. Hobbs and G. Williams the authors conclude that the Noongar Settlement can be described as in its very nature a "classic treaty" which implies "a coming together between two nations to agree on certain things, and in doing so, finding a way forward together and recognising each other's sovereignty." (p. 23). <sup>39</sup> The six communities are: Ballardong, Gnaala Karla Booja, South West Boojarah, Wagyl Kaip &

were hunter-gatherers who endlessly roamed the country without any specific

**138**

living patterns [40].

Southern Noongar, Whadjuk and Yued groups.

<sup>40</sup> This is larger than the territory of countries such as Belgium; Ireland, Austria, Portugal, Hungary and Greece. See [42].

<sup>41</sup> See enclosed map of the area at Annexure 1.

<sup>42</sup> Ultimately the single Noongar claim was lodged to represent around 218 families, and substituting six registered and 12 unregistered claims.

In order for a native title claim to be successful, the following essential requirements must be met: the claimants bear the onus of proof to satisfy the court that they are connected to the land being claimed43 and to the society that resided on the land at the time of settlement through shared apical ancestors [45, 46]; that they continue to hold and practice the customs and traditions of their apical ancestors [47]; and that the bundle of rights they claim continue to exist.44 The essence is that the native title rights as claimed must have originated from a normative system which regulated the traditional observance of laws and customs at the time of British settlement. The laws and customs could have been adapted over years, but if the laws and customs had been extinguished for whatever reason, they could not be revived. The society or community that claims native title must be connected to those that occupied the area at the title of settlement and although it is accepted that changes of population and inter-group mixing may occur, the core identity of the claiming community must be capable of being traced back to the identity of the original community.45

The multiple claims lodged initially by various family groupings of the Noongar community, were ultimately amalgamated into what became known as the single Noongar claim. The decision to amalgamate the claims was for tactical and empirical reasons. Tactically it was thought that the likelihood of success of any native title determination with so many competing and overlapping claims would be diminished, whereas empirically there was strong research that supported a larger integrated claim for all of the Noongar people to lay claim to the entire south west region, but with acknowledgement that smaller family groupings had closer connection to certain parts of country [50].

This idea of a single claim for the Noongar people as a "society" became a key element of dispute between the Noongar and those who opposed the claim, with the Noongar contending that they were a single society, whereas the state government claiming that each of the family groupings that now purportedly make up the Noongar people, in effect had their own laws and customs and country for which to care [51].46

The hearing of the single Noongar claim commenced on 11 October 2005 [52]. Evidence of the Noongar witnesses and experts called on their behalf, was in essence that the Noongar people constituted a "society" that shared common belief, language and customs and that differences in dialect were not adequate to conclude that separate languages and therefore different societies existed. The Noongar witnesses, supported by experts, said that there was an ongoing spiritual and where possible physical connection to the lands of their apical ancestors, and that the laws and customs continued to be adhered to albeit in the context of contemporary society. Those who opposed the claim, most notably the state and federal governments, challenged the proposition that there had been a single Noongar society at the time of British settlement. The notion of a single Noongar identity was according to the state government a modern construct that in itself was indicative of the breakdown of Noongar traditional laws and customs rather than an affirmation thereof.

**141**

*Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous…*

Whereas it is not within the scope of this chapter to analyse in depth the nature of the Noongar native title claims, a pertinent question that arose during the litigation process was whether the respective claims groups that fell within the general category of "Noongar," could indeed be regarded as a single society of people with a shared identity and language. The linguistic expert who gave evidence for the Noongar people found that if the wordlists that were recorded by the early settlers were compared to words that have been recorded from within what is now referred to as the Noongar area, there is an adequate similarity to conclude that the respective communities that make up the Noongar claims had more in common with each other than they shared with neighbouring language communities. The Noongar people therefore had a sufficient level of distinctiveness that allowed them to be called a single society and that the language they

In his judgement of 19 September 2016 Wilcox accepted the evidence of the Noongar witnesses and opinions of experts called by them and said, in summary, as

*"I have reached the conclusion that the Single Noongar applicants are correct in claiming that, in 1829, the laws and customs governing land throughout the whole claim area were those of a single community. My principal reasons for that conclu-*

i.this conclusion best accords with the information left to us by the early

ii.I am satisfied, on the evidence of Dr Nicholas Thieberger, an expert in Aboriginal languages, that in 1829 there was a single language throughout the whole claim area, albeit with dialectic differences between various parts

iii.the evidence establishes some important customary differences between people living within the claim area and those living immediately outside it

iv.there is evidence of extensive interaction between people living across the

v.there is no evidence of significant differences within the claim area, as regards the content of laws and customs relating to land [54]."

The judgement of Wilcox was appealed to the Full Federal Court in the matter

remitted to a single federal court justice for reconsideration.48 Since the single Noongar claim had not been dismissed but had been referred back for what in effect would be a re-hearing, the parties to the dispute agreed to enter into settlement

<sup>48</sup> Some of the reasons of relevance to this chapter given by the Full Court for setting aside the judgement of Wilcox J was that he had not given adequate attention to expert evidence that supported the opinion of the state namely that continuing connection had been severed and there was inadequate evidence to conclude that a Noongar society or nation had existed at the time of settlement (par 123).

47 The appeal was successful on various grounds and

(Yamatji to the north and Wongai to the north east);

*DOI: http://dx.doi.org/10.5772/intechopen.86622*

speak predates colonisation [53].

*sion are as follows:*

writers;

of that area;

claim area;

known as *Bodney v Bennell*.

negotiations.

<sup>47</sup> 2008 FCAFC 63.

follows:

<sup>43</sup> The "connection" need not be physical by the community living on the land being claimed, but it must be spiritual and the knowledge transmitted but be evidenced of the knowledge, understanding and caring of the land in question. See *Members of the* [44].

<sup>44</sup> For a useful overview of requirements to prove native title see [48].

<sup>45</sup> See for example, [49] 404 in which it is explained that once the connection had been severed, it cannot be restored.

<sup>46</sup> See [51] Observations on the Richtersveld litigation route followed in South Africa versus the Noongar settlement route followed in Western Australia.

*Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous… DOI: http://dx.doi.org/10.5772/intechopen.86622*

Whereas it is not within the scope of this chapter to analyse in depth the nature of the Noongar native title claims, a pertinent question that arose during the litigation process was whether the respective claims groups that fell within the general category of "Noongar," could indeed be regarded as a single society of people with a shared identity and language. The linguistic expert who gave evidence for the Noongar people found that if the wordlists that were recorded by the early settlers were compared to words that have been recorded from within what is now referred to as the Noongar area, there is an adequate similarity to conclude that the respective communities that make up the Noongar claims had more in common with each other than they shared with neighbouring language communities. The Noongar people therefore had a sufficient level of distinctiveness that allowed them to be called a single society and that the language they speak predates colonisation [53].

In his judgement of 19 September 2016 Wilcox accepted the evidence of the Noongar witnesses and opinions of experts called by them and said, in summary, as follows:

*"I have reached the conclusion that the Single Noongar applicants are correct in claiming that, in 1829, the laws and customs governing land throughout the whole claim area were those of a single community. My principal reasons for that conclusion are as follows:*


The judgement of Wilcox was appealed to the Full Federal Court in the matter known as *Bodney v Bennell*. 47 The appeal was successful on various grounds and remitted to a single federal court justice for reconsideration.48 Since the single Noongar claim had not been dismissed but had been referred back for what in effect would be a re-hearing, the parties to the dispute agreed to enter into settlement negotiations.

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

original community.45

care [51].46

nection to certain parts of country [50].

caring of the land in question. See *Members of the* [44].

settlement route followed in Western Australia.

<sup>44</sup> For a useful overview of requirements to prove native title see [48].

In order for a native title claim to be successful, the following essential requirements must be met: the claimants bear the onus of proof to satisfy the court that they are connected to the land being claimed43 and to the society that resided on the land at the time of settlement through shared apical ancestors [45, 46]; that they continue to hold and practice the customs and traditions of their apical ancestors [47]; and that the bundle of rights they claim continue to exist.44 The essence is that the native title rights as claimed must have originated from a normative system which regulated the traditional observance of laws and customs at the time of British settlement. The laws and customs could have been adapted over years, but if the laws and customs had been extinguished for whatever reason, they could not be revived. The society or community that claims native title must be connected to those that occupied the area at the title of settlement and although it is accepted that changes of population and inter-group mixing may occur, the core identity of the claiming community must be capable of being traced back to the identity of the

The multiple claims lodged initially by various family groupings of the Noongar community, were ultimately amalgamated into what became known as the single Noongar claim. The decision to amalgamate the claims was for tactical and empirical reasons. Tactically it was thought that the likelihood of success of any native title determination with so many competing and overlapping claims would be diminished, whereas empirically there was strong research that supported a larger integrated claim for all of the Noongar people to lay claim to the entire south west region, but with acknowledgement that smaller family groupings had closer con-

This idea of a single claim for the Noongar people as a "society" became a key element of dispute between the Noongar and those who opposed the claim, with the Noongar contending that they were a single society, whereas the state government claiming that each of the family groupings that now purportedly make up the Noongar people, in effect had their own laws and customs and country for which to

The hearing of the single Noongar claim commenced on 11 October 2005 [52].

Evidence of the Noongar witnesses and experts called on their behalf, was in essence that the Noongar people constituted a "society" that shared common belief, language and customs and that differences in dialect were not adequate to conclude that separate languages and therefore different societies existed. The Noongar witnesses, supported by experts, said that there was an ongoing spiritual and where possible physical connection to the lands of their apical ancestors, and that the laws and customs continued to be adhered to albeit in the context of contemporary society. Those who opposed the claim, most notably the state and federal governments, challenged the proposition that there had been a single Noongar society at the time of British settlement. The notion of a single Noongar identity was according to the state government a modern construct that in itself was indicative of the breakdown

of Noongar traditional laws and customs rather than an affirmation thereof.

<sup>43</sup> The "connection" need not be physical by the community living on the land being claimed, but it must be spiritual and the knowledge transmitted but be evidenced of the knowledge, understanding and

<sup>45</sup> See for example, [49] 404 in which it is explained that once the connection had been severed, it cannot

<sup>46</sup> See [51] Observations on the Richtersveld litigation route followed in South Africa versus the Noongar

**140**

be restored.

<sup>47</sup> 2008 FCAFC 63.

<sup>48</sup> Some of the reasons of relevance to this chapter given by the Full Court for setting aside the judgement of Wilcox J was that he had not given adequate attention to expert evidence that supported the opinion of the state namely that continuing connection had been severed and there was inadequate evidence to conclude that a Noongar society or nation had existed at the time of settlement (par 123).

The negotiations, which commenced around December 2009 continued until 2016 when the *Noongar Recognition Act* and the *Noongar Land Administration Act* [55],49 were enacted by the Parliament of the state Western Australia, together with an Indigenous Land Use Agreement for each of the six areas.50 The agreement reached sought to strike a midway between the propositions put to the court—on the one hand the notion of a single Noongar society was accepted, but on the other hand the principle of smaller family groupings bearing responsibility for subregions was also endorsed.

#### **6.4 Outline of the Noongar Settlement**

A brief outline (see in depth discussion below) of the Noongar Settlement is that an integrated settlement has been entered into between the Noongar people and the state of Western Australia whereby the native title claims are surrendered in exchange for a package of rights that includes financial support; joint management of land; transfer of land and houses; cultural programmes; and heritage protection.

The Settlement is managed via seven Aboriginal Corporations of which six represent the main communities in the sub-regions and one Corporation provides general centralised services to the six corporations.

It is the proposition of this chapter that these Noongar Corporations constitute, in effect, a potential fourth level of government whereby the Noongar people can manage and control their own cultural, heritage and linguistic interests on a non-territorial basis, while at the same time entering into service agreements with state and federal authorities to act as agent for the delivery of public services in areas such as health, education, infrastructure and conservation.

The Settlement has quite correctly been described by the then Premier of Western Australia as most comprehensive statutory settlement of native title claims in Australia.51

#### **7. The Noongar Settlement—the essential elements for privatised self-government**

#### **7.1 Introduction**

The Noongar Settlement refers to three main legal instruments that lay the basis for the resolution of the respective Noongar claims, namely the *Noongar Recognition* 

**143**

*Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous…*

52 the *Noongar Land Administration Act* [55],53 and an *Indigenous Land Use Agreement* registered pursuant to the *Native Title Act* for each of the six sub-regions

The Settlement, according to which the Noongar people surrender native title for the entire area the subject of the agreement, includes in return a compensation package of benefits that involves a combination of recognition of traditional land ownership; annual payments by the State government to the Aboriginal communities for a future fund; the management of their cultural and traditional affairs; joint management of conservation areas; access to Crown (public) land; a housing and land package; employment and business opportunities; and support for Noongar

The Settlement, for purposes of this chapter, comprises the following essential

Firstly, the Settlement covers all lands the subject of the agreement and it is not

Secondly, the Settlement is encased in statute and it is the outcome of negotia-

Thirdly, the larger Noongar region is divided into six smaller sub-regions where the Noongar families that are associated with that specific area take responsibility by way of a registered corporation to discharge the duties and functions arising

Fourthly, the jurisdiction of the six corporations over their respective com-

Fifthly, the corporations are a hybrid of civil and public law bodies since they are created pursuant to a statute; they offer services of a personal, community, social and economic nature; and they may act as agent to deliver services on behalf of government departments. The corporations are, in effect, a form of fourth level of government that service the interests of their members on a community basis but

A unique aspect of the Settlement is that it covers the entire region, including waters and rivers, and is not limited to pockets of land where native title continues to exist. The area of land is set out in (**Figure 1**) Schedule 3 of the Noongar Settlement Act and it includes farming areas; towns, villages and cities in the area.

<sup>52</sup> The Act recognises the Noongar people as the traditional owners of the south-west of the state of

<sup>53</sup> Preamble item three of the Noongar Land Administration Act provides that the agreement compensates the Noongar people for the "loss, surrender, diminution, impairment and other effects" of their

<sup>55</sup> It must be noted, however, that the Settlement is unlikely to have eventuated had it not been for the litigation and court actions that preceded it. It is arguably only after the parties had fully grasped the

<sup>56</sup> The six communities are: Ballardong, Gnaala Karla Booja, South West Boojarah, Wagyl Kaip &

munities is of a non-territorial nature in the sense that public services are rendered by the corporations on a community and personal basis within the sub-region, and those services do not exclude the territorial jurisdictions of local

limited to areas where native title had been claimed or determined;

*DOI: http://dx.doi.org/10.5772/intechopen.86622*

(jointly referred to herein as Settlement).

commercial and entrepreneurial activities.54

not to the exclusion of other governments.

<sup>54</sup> For a summary of the settlement package refer to [56].

Southern Noongar, Whadjuk and Yued groups.

complexity and risk of litigation that they resorted to a negotiated outcome.

tions rather than litigation;55

from the Settlement;56

government; and

**7.2 Area of land covered**

Western Australia.

native title rights and interests.

*Act*;

elements:

<sup>49</sup> Preamble item three of the Noongar Land Administration Act provides that the agreement compensates the Noongar people for the "loss, surrender, diminution, impairment and other effects" of their native title rights and interests.

<sup>50</sup> On 17 October 2018 the National Native Title Registrar accepted the Indigenous Land Use Agreement for registration. This followed some opposition from within the Noongar community for the settlement to be ratified and the decision of the Federal Court in *McGlade v Native Title Registrar* (2017) FCAFC 10 that the indigenous and use agreements could not be registered until consent from all affected native title groupings had been obtained. The federal parliament introduced amendments to the Native Title Act that enabled the registration of the settlement to be finalised.

<sup>51</sup> Premier of Western Australia, Colin Barnett, described the Noongar Settlement as "the most comprehensive native title agreement" in Australia. Western Australia *Parliamentary Debates* Legislative Assembly, 14 October 2016, 7313.

*Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous… DOI: http://dx.doi.org/10.5772/intechopen.86622*

*Act*; 52 the *Noongar Land Administration Act* [55],53 and an *Indigenous Land Use Agreement* registered pursuant to the *Native Title Act* for each of the six sub-regions (jointly referred to herein as Settlement).

The Settlement, according to which the Noongar people surrender native title for the entire area the subject of the agreement, includes in return a compensation package of benefits that involves a combination of recognition of traditional land ownership; annual payments by the State government to the Aboriginal communities for a future fund; the management of their cultural and traditional affairs; joint management of conservation areas; access to Crown (public) land; a housing and land package; employment and business opportunities; and support for Noongar commercial and entrepreneurial activities.54

The Settlement, for purposes of this chapter, comprises the following essential elements:

Firstly, the Settlement covers all lands the subject of the agreement and it is not limited to areas where native title had been claimed or determined;

Secondly, the Settlement is encased in statute and it is the outcome of negotiations rather than litigation;55

Thirdly, the larger Noongar region is divided into six smaller sub-regions where the Noongar families that are associated with that specific area take responsibility by way of a registered corporation to discharge the duties and functions arising from the Settlement;56

Fourthly, the jurisdiction of the six corporations over their respective communities is of a non-territorial nature in the sense that public services are rendered by the corporations on a community and personal basis within the sub-region, and those services do not exclude the territorial jurisdictions of local government; and

Fifthly, the corporations are a hybrid of civil and public law bodies since they are created pursuant to a statute; they offer services of a personal, community, social and economic nature; and they may act as agent to deliver services on behalf of government departments. The corporations are, in effect, a form of fourth level of government that service the interests of their members on a community basis but not to the exclusion of other governments.

#### **7.2 Area of land covered**

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

regions was also endorsed.

protection.

conservation.

in Australia.51

**self-government**

native title rights and interests.

Assembly, 14 October 2016, 7313.

that enabled the registration of the settlement to be finalised.

**7.1 Introduction**

**6.4 Outline of the Noongar Settlement**

general centralised services to the six corporations.

The negotiations, which commenced around December 2009 continued until 2016 when the *Noongar Recognition Act* and the *Noongar Land Administration Act* [55],49 were enacted by the Parliament of the state Western Australia, together with an Indigenous Land Use Agreement for each of the six areas.50 The agreement reached sought to strike a midway between the propositions put to the court—on the one hand the notion of a single Noongar society was accepted, but on the other hand the principle of smaller family groupings bearing responsibility for sub-

A brief outline (see in depth discussion below) of the Noongar Settlement is that an integrated settlement has been entered into between the Noongar people and the state of Western Australia whereby the native title claims are surrendered in exchange for a package of rights that includes financial support; joint management of land; transfer of land and houses; cultural programmes; and heritage

The Settlement is managed via seven Aboriginal Corporations of which six represent the main communities in the sub-regions and one Corporation provides

It is the proposition of this chapter that these Noongar Corporations constitute, in effect, a potential fourth level of government whereby the Noongar people can manage and control their own cultural, heritage and linguistic interests on a non-territorial basis, while at the same time entering into service agreements with state and federal authorities to act as agent for the delivery of public services in areas such as health, education, infrastructure and

The Settlement has quite correctly been described by the then Premier of Western Australia as most comprehensive statutory settlement of native title claims

**7. The Noongar Settlement—the essential elements for privatised** 

The Noongar Settlement refers to three main legal instruments that lay the basis for the resolution of the respective Noongar claims, namely the *Noongar Recognition* 

<sup>49</sup> Preamble item three of the Noongar Land Administration Act provides that the agreement compensates the Noongar people for the "loss, surrender, diminution, impairment and other effects" of their

<sup>50</sup> On 17 October 2018 the National Native Title Registrar accepted the Indigenous Land Use Agreement for registration. This followed some opposition from within the Noongar community for the settlement to be ratified and the decision of the Federal Court in *McGlade v Native Title Registrar* (2017) FCAFC 10 that the indigenous and use agreements could not be registered until consent from all affected native title groupings had been obtained. The federal parliament introduced amendments to the Native Title Act

<sup>51</sup> Premier of Western Australia, Colin Barnett, described the Noongar Settlement as "the most comprehensive native title agreement" in Australia. Western Australia *Parliamentary Debates* Legislative

**142**

A unique aspect of the Settlement is that it covers the entire region, including waters and rivers, and is not limited to pockets of land where native title continues to exist. The area of land is set out in (**Figure 1**) Schedule 3 of the Noongar Settlement Act and it includes farming areas; towns, villages and cities in the area.

<sup>52</sup> The Act recognises the Noongar people as the traditional owners of the south-west of the state of Western Australia.

<sup>53</sup> Preamble item three of the Noongar Land Administration Act provides that the agreement compensates the Noongar people for the "loss, surrender, diminution, impairment and other effects" of their native title rights and interests.

<sup>54</sup> For a summary of the settlement package refer to [56].

<sup>55</sup> It must be noted, however, that the Settlement is unlikely to have eventuated had it not been for the litigation and court actions that preceded it. It is arguably only after the parties had fully grasped the complexity and risk of litigation that they resorted to a negotiated outcome.

<sup>56</sup> The six communities are: Ballardong, Gnaala Karla Booja, South West Boojarah, Wagyl Kaip & Southern Noongar, Whadjuk and Yued groups.

**Figure 1.** *Schedule 3, Noongar Recognition Act, 2016: The area subject to the Noongar Settlement.*

The settlement area is divided into six sub-regions of which each is made up of the families whose apical ancestors originate from those areas.57

This is arguably the most reconciliatory aspect of the Settlement since it is acknowledged by law that the Noongar people used to occupy the entire area prior to British settlement; that regardless of other interventions the Noongar people continue to regard the entire area at their country; and that the powers, functions, and

**145**

*Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous…*

authorities that they discharge in regard to their customs, laws and traditions are not limited to areas where native title exists, but to the entire region on a personal and community basis. The Recognition Act acknowledges that the Noongar people are the traditional owners of the entire region, but this recognition does not conflict with the rights and interests that had been granted to other persons by way of, for example, freehold.58 The special relationship between the Noongar people and their land is acknowledged as them having a "living cultural, spiritual, familial and social

The holistic approach to recognise an Aboriginal community's traditional ownership to an entire region is ground-breaking and is the first of its kind in

It is not surprising that the Settlement has been described as the first real "treaty" between an Aboriginal community and a government of Australia [3].62 The Settlement entails in essence that two governing systems have agreed on a settlement that is reflected in a binding legal instrument that exhibits strong ele-

The Settlement reflects a type of federal arrangement whereby community corporations in each of the sub-regions are responsible for the management of their own cultural, social and traditional affairs, whereas matters that require cooperation are coordinated by a central services corporation for the entire region.

The legal basis of the Settlement is found in three instruments namely the *Noongar Recognition Act*; the *Noongar Land Administration Act*, and an *Indigenous Land Use Agreement* registered pursuant to the *Native Title Act* for each of the six areas. The Indigenous Land Use Agreement (ILUA) for each sub-region sets out the

The Noongar Recognition Act recognises the Noongar people as the traditional owners of the land; it acknowledges the special contribution they have made and

<sup>61</sup> s6 of the Noongar Recognition Act seeks to remove any potential rights that may be claimed in future other than what has been explicitly agreed to. This statutory provision may not necessarily preclude a future court to interpret the Settlement in an expansionist manner in favour of consultation, procedural

<sup>62</sup> The authors are of the opinion that the Noongar Settlement is a "classic treaty" which implies "a coming together between two nations to agree on certain things, and in doing so, finding a way forward

<sup>63</sup> For sake of convenience the Ballardong ILUA (in excess of 800 pages) is used as a basis since the other five ILUAs contain similar terms and conditions. *See* [61]. The native title rights are dealt with in

and substantive rights not necessarily provided for in the Noongar Recognition Act.

In contrast to other successful determinations of native title whereby Aboriginal people only have jurisdiction of areas where native title had not been extinguished, the Noongar Settlement set the Noongar people and their institutions as a parallel, private authority to the state and local governments for the entire region covered by the Settlement. The full implications of the Settlement will be revealed over time, but it can be foreshadowed that in future elected governments at federal, state and local levels may be required by law, legal proceedings and by practical circumstance to negotiate with the Noongar corporations about key policy issues that affect the

*DOI: http://dx.doi.org/10.5772/intechopen.86622*

relationship with the land."<sup>59</sup>

land, their laws, culture and customs.61

**7.3 Legal basis of Settlement**

terms of the Settlement.63

<sup>58</sup> s4 Noongar Recognition Act. <sup>59</sup> s5 Noongar Recognition Act.

<sup>60</sup> See enclosed map of the area at Annexure 1 [60].

together and recognising each other's sovereignty." (p. 23).

accordance with s 24CB(e) and s 24EB(1)(d) Native Title Act.

ments of a founding constitution for the Noongar people.

Australia.60

<sup>57</sup> A Land Use Agreement (ILUA) is entered into pursuant to the *Native Title Act 1993*. The six ILUAs were registered on 17 October 2018. Jeanice Krakouer, a senior representative of the Noongar people, described the registration of the ILUAs as follows: "This is a great opportunity for the Noongar People to come together, to control our own destiny, and to build a solid future for generations to come [57]." For more information about the registration of an ILUA see [58]. See the respective ILUAs for the six areas at [59].

#### *Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous… DOI: http://dx.doi.org/10.5772/intechopen.86622*

authorities that they discharge in regard to their customs, laws and traditions are not limited to areas where native title exists, but to the entire region on a personal and community basis. The Recognition Act acknowledges that the Noongar people are the traditional owners of the entire region, but this recognition does not conflict with the rights and interests that had been granted to other persons by way of, for example, freehold.58 The special relationship between the Noongar people and their land is acknowledged as them having a "living cultural, spiritual, familial and social relationship with the land."<sup>59</sup>

The holistic approach to recognise an Aboriginal community's traditional ownership to an entire region is ground-breaking and is the first of its kind in Australia.60

In contrast to other successful determinations of native title whereby Aboriginal people only have jurisdiction of areas where native title had not been extinguished, the Noongar Settlement set the Noongar people and their institutions as a parallel, private authority to the state and local governments for the entire region covered by the Settlement. The full implications of the Settlement will be revealed over time, but it can be foreshadowed that in future elected governments at federal, state and local levels may be required by law, legal proceedings and by practical circumstance to negotiate with the Noongar corporations about key policy issues that affect the land, their laws, culture and customs.61

It is not surprising that the Settlement has been described as the first real "treaty" between an Aboriginal community and a government of Australia [3].62 The Settlement entails in essence that two governing systems have agreed on a settlement that is reflected in a binding legal instrument that exhibits strong elements of a founding constitution for the Noongar people.

The Settlement reflects a type of federal arrangement whereby community corporations in each of the sub-regions are responsible for the management of their own cultural, social and traditional affairs, whereas matters that require cooperation are coordinated by a central services corporation for the entire region.

#### **7.3 Legal basis of Settlement**

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

The settlement area is divided into six sub-regions of which each is made up of the

This is arguably the most reconciliatory aspect of the Settlement since it is acknowledged by law that the Noongar people used to occupy the entire area prior to British settlement; that regardless of other interventions the Noongar people continue to regard the entire area at their country; and that the powers, functions, and

<sup>57</sup> A Land Use Agreement (ILUA) is entered into pursuant to the *Native Title Act 1993*. The six ILUAs were registered on 17 October 2018. Jeanice Krakouer, a senior representative of the Noongar people, described the registration of the ILUAs as follows: "This is a great opportunity for the Noongar People to come together, to control our own destiny, and to build a solid future for generations to come [57]." For more information about the registration of an ILUA see [58]. See the respective ILUAs for the six areas at [59].

families whose apical ancestors originate from those areas.57

*Schedule 3, Noongar Recognition Act, 2016: The area subject to the Noongar Settlement.*

**144**

**Figure 1.**

The legal basis of the Settlement is found in three instruments namely the *Noongar Recognition Act*; the *Noongar Land Administration Act*, and an *Indigenous Land Use Agreement* registered pursuant to the *Native Title Act* for each of the six areas. The Indigenous Land Use Agreement (ILUA) for each sub-region sets out the terms of the Settlement.63

The Noongar Recognition Act recognises the Noongar people as the traditional owners of the land; it acknowledges the special contribution they have made and

<sup>58</sup> s4 Noongar Recognition Act.

<sup>59</sup> s5 Noongar Recognition Act.

<sup>60</sup> See enclosed map of the area at Annexure 1 [60].

<sup>61</sup> s6 of the Noongar Recognition Act seeks to remove any potential rights that may be claimed in future other than what has been explicitly agreed to. This statutory provision may not necessarily preclude a future court to interpret the Settlement in an expansionist manner in favour of consultation, procedural and substantive rights not necessarily provided for in the Noongar Recognition Act.

<sup>62</sup> The authors are of the opinion that the Noongar Settlement is a "classic treaty" which implies "a coming together between two nations to agree on certain things, and in doing so, finding a way forward together and recognising each other's sovereignty." (p. 23).

<sup>63</sup> For sake of convenience the Ballardong ILUA (in excess of 800 pages) is used as a basis since the other five ILUAs contain similar terms and conditions. *See* [61]. The native title rights are dealt with in accordance with s 24CB(e) and s 24EB(1)(d) Native Title Act.

continue to make to the heritage, cultural identity, community and economy of the state; and it confirms that the package of measures included in the Settlement are in full and final settlement of any native title claim they may have in the region.64 The Act also defines the region to which the Settlement applies and includes a map of the area.65

The Noongar Land Administration Act contains the detail of land to be transferred to the Noongar people; reserves to be created for their enjoyment; and related arrangements to ensure land management and access. These actions are termed a Land Base Strategy to reflect the holistic and all-inclusive nature of the Settlement.66 The Act confirms that the Settlement is in full and final compensation for any claim that may arise now or in the future in respect of native title.

The ILUAs entered into for each of the six sub-regions contain the detail of the Settlement for the particular area. An ILUA is a creature of the Native Title Act to enable Aboriginal people to enter into a binding agreement with other persons about their lands and waters. An ILUA binds all persons in regard to the land and the rights affected, even persons who were not part of the agreement. An ILUA can cover any aspect of native title, including the way in which land is managed; areas that are protected; authorisation for works to take place on land; heritage protection; negotiation protocols and compensation. An ILUA is advertised for public comment and then registered by the National Native Title Tribunal to form part of the public record.

The Ballardong ILUA was registered on 17 October 2018.67 It acknowledges that the Settlement is "unprecedented" in Australia and that the Settlement "provides a significant opportunity for the Noongar people to achieve sustainable economic, social and cultural outcomes."68 The Settlement is clearly not only aimed at the mere establishment of a cultural club or association, but it is intended to provide a basis for self-determination; autonomy; and self-fulfilment of the Noongar People. It is also confirmed that the Settlement forms the basis for extinguishment of all native title claims and for fair and just compensation for any rights or interests forfeited. The ILUA then sets out all the details of the Settlement in a legally binding format.

The Noongar Recognition Act; the Noongar Land Administration Act, and the ILUA for each of the six sub-regions together form what could be seen as a "constitution" for the recognition and establishment of the Noongar self-determination and self-governing institutions. Whereas native title is often referred to as a "bundle of rights,"69 the Settlement offers a holistic outcome whereby the entire Noongar community is acknowledged; where cultural, spiritual, linguistic, social and economic needs and interests are recognised; and where the rights apply to an entire region. The Settlement is as much a political, founding constitution as it is a statement of cultural recognition.

#### **7.4 Noongar self-governing institutions**

The institutional arrangements for the Noongar people reflect the nature of their linkage to the apical ancestors of the region. Although the Settlement covers the

**147**

**Figure 2.**

*Corporations.*

local level (**Figure 2**).

*Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous…*

entire region, provision is made for six sub-regions for families who hold the closest ties to those respective areas. Each of these six sub-regions has its own institutional arrangement and the six corporations work together in a federal-type structure in a common central services corporation for the entire region. There is an element of subsidiarity in these arrangements since whatever functions cannot effectively be discharged by the sub-regional corporations can be delegated to the common central services corporation for decision-making. These arrangements reflect the historic reality that the Noongar People on the one hand shared a common language, law and customs, but on the other hand the caring of country was done at a

*The main cities and towns in the Noongar settlement area as well as the sub-regions for the six Noongar* 

The federal-type Central Services Corporation is responsible to coordinate the activities of the six sub-regional Noongar Corporations; to undertakes collective negotiations with federal, state and local government agencies; to initiate and coordinate major projects; to advocate on behalf of the Noongar people; to develop training and other material for leadership development; to undertake heritage protection and a heritage protocol for the entire region; to develop a cultural advice

*DOI: http://dx.doi.org/10.5772/intechopen.86622*

<sup>64</sup> Preamble, Noongar Recognition Act.

<sup>65</sup> See Schedule to this Chapter.

<sup>66</sup> See Schedule 10, item 8 of the Ballardong ILUA.

<sup>67</sup> The Indigenous Land Use Agreements for the other five sub-regions were registered at the same time.

<sup>68</sup> See Preamble, Ballardong ILUA.

<sup>69</sup> Native title in effect comprises a bundle of rights such as hunting, fishing, camping, and caring for country which, depending on the circumstances of each claim group, is limited in scope as to the area to which it applies and the specific rights that form part of it. This very legalistic process leave some groups with a sense of disillusion because of the scope and/or content of their rights.

*Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous… DOI: http://dx.doi.org/10.5772/intechopen.86622*

**Figure 2.**

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

continue to make to the heritage, cultural identity, community and economy of the state; and it confirms that the package of measures included in the Settlement are in full and final settlement of any native title claim they may have in the region.64 The Act also defines the region to which the Settlement applies and includes a map of the area.65 The Noongar Land Administration Act contains the detail of land to be transferred to the Noongar people; reserves to be created for their enjoyment; and related arrangements to ensure land management and access. These actions are termed a Land Base Strategy to reflect the holistic and all-inclusive nature of the Settlement.66 The Act confirms that the Settlement is in full and final compensation

for any claim that may arise now or in the future in respect of native title.

The ILUAs entered into for each of the six sub-regions contain the detail of the Settlement for the particular area. An ILUA is a creature of the Native Title Act to enable Aboriginal people to enter into a binding agreement with other persons about their lands and waters. An ILUA binds all persons in regard to the land and the rights affected, even persons who were not part of the agreement. An ILUA can cover any aspect of native title, including the way in which land is managed; areas that are protected; authorisation for works to take place on land; heritage protection; negotiation protocols and compensation. An ILUA is advertised for public comment and then registered by the National Native Title Tribunal to form part of

The Ballardong ILUA was registered on 17 October 2018.67 It acknowledges that the Settlement is "unprecedented" in Australia and that the Settlement "provides a significant opportunity for the Noongar people to achieve sustainable economic, social and cultural outcomes."68 The Settlement is clearly not only aimed at the mere establishment of a cultural club or association, but it is intended to provide a basis for self-determination; autonomy; and self-fulfilment of the Noongar People. It is also confirmed that the Settlement forms the basis for extinguishment of all native title claims and for fair and just compensation for any rights or interests forfeited. The ILUA then sets out all the details of the Settlement in a legally binding format. The Noongar Recognition Act; the Noongar Land Administration Act, and the ILUA for each of the six sub-regions together form what could be seen as a "constitution" for the recognition and establishment of the Noongar self-determination and self-governing institutions. Whereas native title is often referred to as a "bundle of rights,"69 the Settlement offers a holistic outcome whereby the entire Noongar community is acknowledged; where cultural, spiritual, linguistic, social and

economic needs and interests are recognised; and where the rights apply to an entire region. The Settlement is as much a political, founding constitution as it is a state-

The institutional arrangements for the Noongar people reflect the nature of their

linkage to the apical ancestors of the region. Although the Settlement covers the

<sup>67</sup> The Indigenous Land Use Agreements for the other five sub-regions were registered at the same time.

<sup>69</sup> Native title in effect comprises a bundle of rights such as hunting, fishing, camping, and caring for country which, depending on the circumstances of each claim group, is limited in scope as to the area to which it applies and the specific rights that form part of it. This very legalistic process leave some groups

with a sense of disillusion because of the scope and/or content of their rights.

**146**

the public record.

ment of cultural recognition.

<sup>64</sup> Preamble, Noongar Recognition Act. <sup>65</sup> See Schedule to this Chapter.

<sup>68</sup> See Preamble, Ballardong ILUA.

**7.4 Noongar self-governing institutions**

<sup>66</sup> See Schedule 10, item 8 of the Ballardong ILUA.

*The main cities and towns in the Noongar settlement area as well as the sub-regions for the six Noongar Corporations.*

entire region, provision is made for six sub-regions for families who hold the closest ties to those respective areas. Each of these six sub-regions has its own institutional arrangement and the six corporations work together in a federal-type structure in a common central services corporation for the entire region. There is an element of subsidiarity in these arrangements since whatever functions cannot effectively be discharged by the sub-regional corporations can be delegated to the common central services corporation for decision-making. These arrangements reflect the historic reality that the Noongar People on the one hand shared a common language, law and customs, but on the other hand the caring of country was done at a local level (**Figure 2**).

The federal-type Central Services Corporation is responsible to coordinate the activities of the six sub-regional Noongar Corporations; to undertakes collective negotiations with federal, state and local government agencies; to initiate and coordinate major projects; to advocate on behalf of the Noongar people; to develop training and other material for leadership development; to undertake heritage protection and a heritage protocol for the entire region; to develop a cultural advice policy; and in general to promote the interests of the Noongar People. 70 The seven Corporations are registered under the CATSI Act.

This institutional design is unique to the Settlement and has not previously been pursued in Australia.71

The self-governing corporations are not created by the federal or state constitutions but pursuant to a statute. The corporations do not operate within the sphere of public law but rather as corporations in civil law. Legally this may render the corporations not apt to be described as a "government," but a proper analysis of the functions and objectives of the corporations supports a proposition that in fact the corporations may be regarded as a form of "government" with jurisdiction over a wide range of matters that affect the culture, laws, social development and economic status of the Noongar people.

The membership of the six sub-regional Noongar Corporations are open to all Noongar persons who associate with a specific sub-region through their apical ancestors.72 A person need not live in the area to be a member of the local Corporation.73 Association with a Noongar Corporation is voluntary and there is no obligation on a Noongar person to be a member of a Corporation; to receive any benefits; to accept a service or to participate in activities of a Corporation. A member may also resign when they wish to.74

The Noongar Corporations are *sui generis* in character since they are, on the one hand, private entities under civil law, but on the other hand they provide services to their members that are akin to the type of services a government would provide. It is envisaged that as the Noongar Corporations develop in stature, credibility and legitimacy, that they would also become agents for local, state and federal governments to perform functions and deliver services of a governmental nature to the Noongar people in areas such as health, education and welfare.

#### **7.5 Institutions and powers of the Noongar Corporations**

The institutional arrangements of the six Noongar Corporations are the same, whereby a council comprising two to four directors are elected for each corporation by its members.75 A maximum of two additional directors are appointed by the elected directors of each Corporation for reason of their expertise in areas such as law, finance, business or social matters. The directors are responsible for the day to day operations of the Corporation. Special meetings may be convened of members to vote on or discuss matters of importance to the community.

The federal-nature of the Noongar Corporations is reflected in the composition of the Central Corporation. Each of the sub-regional Noongar Corporations can nominate one director to serve on the Central Services Corporation. The Central Services Corporation may also nominate two additional directors for reason of their expertise in areas such as law, finance or business development. The Central Services Corporation is responsible for functions and activities that exceed the expertise of the sub-regional Corporations; or activities that are

**149**

*Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous…*

of interest to all six Corporations; or that are delegated to the Central Services Corporation by the sub-regional Corporations. The composition and functions of the Central Services Corporation reflects the federal elements of subsidiary and

The powers and functions of the respective Corporations are set out in their founding instruments of incorporation. The six sub-regional Noongar Corporations are responsible to manage and implement the Settlement within their region.76 This allows the sub-regional Corporations some discretion, again in a federal-type manner, to pursue projects, undertake negotiations and develop policies that are relevant to the members of their corporation. Each Corporation can decide how it wishes to discharge its functions in areas such as to promote the traditional laws, culture and customs of their community; to manage any lands that may fall within its jurisdiction; to participate joint management activities; to provide services; to cooperate with state and local governments; to advocate on behalf of their members; and to undertake any activities on behalf of its members. The respective sub-regional Noongar Corporations can therefore experiment with their powers and enter into different type of arrangements with federal, state and

The responsibility and accountability of the Noongar Corporations are at two levels: firstly, the directors are accountable to the members of the Corporation and special meetings can be called to discuss policy issues; and secondly, the Corporations fall under the general supervision of the registrar of Aboriginal

The powers and functions of the Corporations are not of a constitutional nature

but are exercised under civil law. The nature of some of the services provided, for example, in the socio-economic field, in management of land, in housing and employment, are however akin to governmental functions. In addition to the wide objectives of the Noongar Corporations, the individual Corporations and the Central Services Corporation may also enter into agreements or contracts with government agencies whereby a Corporation becomes an agent of a government department to provide services to the Noongar people. The respective Corporations therefore provide services that cover a wide range, from cultural and family affairs,

This again highlights the *sui generis* character of the Noongar Corporations whereby they are incorporated in civil law, but deliver services in the public sphere

The uniqueness of the Settlement is reflected in the wide scope of outcomes that arise from it. Whereas native title settlement are usually linked to the area of native title and aspects of the bundle of rights, the Settlement deals with a broad spectrum of benefits that include socio-economic development; joint management of conservation areas; education and training; housing; advocacy; and the potential for self-government over matters that impact on the culture, traditions and laws of

The respective elements that make up the Settlement are unprecedented in

<sup>77</sup> The Noongar people "surrender" any claim to native title as part of the Settlement [65] and in exchange the benefits received pursuant to the Settlement constitute "full and final compensation."

*DOI: http://dx.doi.org/10.5772/intechopen.86622*

joint rule.

corporations.

local governments.

akin to a government.

the Noongar people.77

<sup>76</sup> Ballardong ILUA, item 8.1.

Ballardong ILUA, item 13.

**7.6 Elements of the Settlement**

Australia and include the following:

to socio-economic and commercial activities.

<sup>70</sup> Ballardong ILUA, Schedule 10, item 4.

<sup>71</sup> For a detailed outline of the legal structure to manage the settlement refers to *Noongar Governance Structure Manual* (2016) by law firm [62].

<sup>72</sup> A membership-expression form is available for the detail of the person who wants to be admitted. In order to assist potential members, detailed anthropological reports are available to ascertain if a person is connected to a sub-region via an apical ancestors. See [63].

<sup>73</sup> *See* Ballardong ILUA, Schedule 2 which sets out the list of apical ancestors for the Ballardong community.

<sup>74</sup> For general background information about the Corporations and operations see [64].

<sup>75</sup> To facilitate participation the elections take place via postal vote.

*Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous… DOI: http://dx.doi.org/10.5772/intechopen.86622*

of interest to all six Corporations; or that are delegated to the Central Services Corporation by the sub-regional Corporations. The composition and functions of the Central Services Corporation reflects the federal elements of subsidiary and joint rule.

The responsibility and accountability of the Noongar Corporations are at two levels: firstly, the directors are accountable to the members of the Corporation and special meetings can be called to discuss policy issues; and secondly, the Corporations fall under the general supervision of the registrar of Aboriginal corporations.

The powers and functions of the respective Corporations are set out in their founding instruments of incorporation. The six sub-regional Noongar Corporations are responsible to manage and implement the Settlement within their region.76 This allows the sub-regional Corporations some discretion, again in a federal-type manner, to pursue projects, undertake negotiations and develop policies that are relevant to the members of their corporation. Each Corporation can decide how it wishes to discharge its functions in areas such as to promote the traditional laws, culture and customs of their community; to manage any lands that may fall within its jurisdiction; to participate joint management activities; to provide services; to cooperate with state and local governments; to advocate on behalf of their members; and to undertake any activities on behalf of its members. The respective sub-regional Noongar Corporations can therefore experiment with their powers and enter into different type of arrangements with federal, state and local governments.

The powers and functions of the Corporations are not of a constitutional nature but are exercised under civil law. The nature of some of the services provided, for example, in the socio-economic field, in management of land, in housing and employment, are however akin to governmental functions. In addition to the wide objectives of the Noongar Corporations, the individual Corporations and the Central Services Corporation may also enter into agreements or contracts with government agencies whereby a Corporation becomes an agent of a government department to provide services to the Noongar people. The respective Corporations therefore provide services that cover a wide range, from cultural and family affairs, to socio-economic and commercial activities.

This again highlights the *sui generis* character of the Noongar Corporations whereby they are incorporated in civil law, but deliver services in the public sphere akin to a government.

#### **7.6 Elements of the Settlement**

The uniqueness of the Settlement is reflected in the wide scope of outcomes that arise from it. Whereas native title settlement are usually linked to the area of native title and aspects of the bundle of rights, the Settlement deals with a broad spectrum of benefits that include socio-economic development; joint management of conservation areas; education and training; housing; advocacy; and the potential for self-government over matters that impact on the culture, traditions and laws of the Noongar people.77

The respective elements that make up the Settlement are unprecedented in Australia and include the following:

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

Corporations are registered under the CATSI Act.

economic status of the Noongar people.

member may also resign when they wish to.74

Noongar people in areas such as health, education and welfare.

**7.5 Institutions and powers of the Noongar Corporations**

to vote on or discuss matters of importance to the community.

<sup>70</sup> Ballardong ILUA, Schedule 10, item 4.

*Structure Manual* (2016) by law firm [62].

connected to a sub-region via an apical ancestors. See [63].

<sup>75</sup> To facilitate participation the elections take place via postal vote.

pursued in Australia.71

policy; and in general to promote the interests of the Noongar People. 70 The seven

This institutional design is unique to the Settlement and has not previously been

The self-governing corporations are not created by the federal or state constitutions but pursuant to a statute. The corporations do not operate within the sphere of public law but rather as corporations in civil law. Legally this may render the corporations not apt to be described as a "government," but a proper analysis of the functions and objectives of the corporations supports a proposition that in fact the corporations may be regarded as a form of "government" with jurisdiction over a wide range of matters that affect the culture, laws, social development and

The membership of the six sub-regional Noongar Corporations are open to all Noongar persons who associate with a specific sub-region through their apical ancestors.72 A person need not live in the area to be a member of the local Corporation.73 Association with a Noongar Corporation is voluntary and there is no obligation on a Noongar person to be a member of a Corporation; to receive any benefits; to accept a service or to participate in activities of a Corporation. A

The Noongar Corporations are *sui generis* in character since they are, on the one hand, private entities under civil law, but on the other hand they provide services to their members that are akin to the type of services a government would provide. It is envisaged that as the Noongar Corporations develop in stature, credibility and legitimacy, that they would also become agents for local, state and federal governments to perform functions and deliver services of a governmental nature to the

The institutional arrangements of the six Noongar Corporations are the same, whereby a council comprising two to four directors are elected for each corporation by its members.75 A maximum of two additional directors are appointed by the elected directors of each Corporation for reason of their expertise in areas such as law, finance, business or social matters. The directors are responsible for the day to day operations of the Corporation. Special meetings may be convened of members

The federal-nature of the Noongar Corporations is reflected in the composition of the Central Corporation. Each of the sub-regional Noongar Corporations can nominate one director to serve on the Central Services Corporation. The Central Services Corporation may also nominate two additional directors for reason of their expertise in areas such as law, finance or business development. The Central Services Corporation is responsible for functions and activities that exceed the expertise of the sub-regional Corporations; or activities that are

<sup>71</sup> For a detailed outline of the legal structure to manage the settlement refers to *Noongar Governance* 

<sup>72</sup> A membership-expression form is available for the detail of the person who wants to be admitted. In order to assist potential members, detailed anthropological reports are available to ascertain if a person is

<sup>73</sup> *See* Ballardong ILUA, Schedule 2 which sets out the list of apical ancestors for the Ballardong community.

<sup>74</sup> For general background information about the Corporations and operations see [64].

**148**

<sup>76</sup> Ballardong ILUA, item 8.1.

<sup>77</sup> The Noongar people "surrender" any claim to native title as part of the Settlement [65] and in exchange the benefits received pursuant to the Settlement constitute "full and final compensation." Ballardong ILUA, item 13.

#### *7.6.1 Land access and management*

The *Noongar Land Estate* is created to manage 320,000 hectares of land for purposes of cultural enjoyment; education; and related uses for the benefit of the Noongar people.78 The purpose of the Land Estate is to enable the Noongar people to "achieve sustainable economic, social and cultural outcomes."79 The philosophy of a Noongar Estate is linked to Land Base Strategy that reflects the practical steps to be taken to establish and further expand the land base of the Noongar people. The land forming part of the Estate is to be used exclusively to promote and develop the culture and traditions of the Noongar People. A Noongar Land Fund is also established to assist the respective communities to acquire land in their sub-regions. The state is to make available \$46,850,000 over a 10 year period for the implementation of the Land Fund.80 Adding to the Land Estate transferred to the Noongar people, the Settlement also grants access to the Noongar people to crown (public) land for purposes of cultural and traditional activities.81

#### *7.6.2 Joint management of land*

An important other element of the Noongar Settlement is the opportunity for the Noongar to jointly manage national parks and the conservation estate of the settlement area. These are often areas that a close to the heart of the Noongar people since the environment sought to be protected is also of unique significance to the local Noongar community. As a result of the Settlement joint bodies are formed between state agencies and respective Noongar Corporations to manage the conservation estate within the settlement area and to employ as far as possible Noongar people to work within those conservation areas.82

#### *7.6.3 Housing and development programme*

A number of houses (121) which are occupied by Aboriginal people, are transferred to the Noongar people together with financial support to maintain the houses. In addition, an assistance package has been put in place to help members of the Noongar community to develop business and entrepreneurial skills; and a general community development programme83 is implemented aimed at improving the standard of living of the Noongar people.84 In addition to these initiatives, a major capital works programme has also been launched whereby the state government funds the Noongar to establish administrative offices for the seven Noongar Corporations.85 Aspects of the Settlement are clearly aspirational, with detail to be developed over time,86 but at the same time the essence of the settlement is reflected namely that it is not only the cultural aspirations of the Noongar that are addressed, but the socio-economic ideals of the community as well.

**151**

*Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous…*

A standard heritage protocol is set out to regulate access to Noongar lands and traditional sites of importance.87 The protocol sets out the manner in which heritage surveys are conducted; the persons to be involved; the object of the surveys; and the

The *Noongar Boodja Trust* is established as an overarching trust to hold, manage and control all benefits that accrue from the Noongar Settlement on behalf of the Noongar people. The objects of the Trust include support of the seven Noongar Corporations; to hold and manage Noongar land; to hold and manage the Future Fund on behalf of the Noongar; to manage a land and housing fund on behalf of the Noongar; and to make investments on behalf of the Noongar people.88 The Trust is also responsible to promote and facilitate good corporate governance of the seven Noongar Corporations and effective communication between the Noongar people and the Corporations.89 The Trust is also responsible to oversee and manage the contributions received from government for the operations of the Trust and projects for the Noongar people. The government of Western Australia contributes A\$50 million per annum for 12 years towards future funds for the Corporations. The Trust may use its income to undertake projects; initiative activities; make investments and do whatever it deems to be in the interest of the language, culture and general wellbeing of the Noongar People. In addition, the government of Western Australia also contributes A\$10 million per annum to the operations funds

*DOI: http://dx.doi.org/10.5772/intechopen.86622*

possibility to review the protocol from time to time.

to the operating costs of the offices of the Corporations.90

**8. Reflection on the privatised self-government of the Noongar** 

The Noongar Settlement is ground-breaking in many respects. It demonstrates how a non-litigated outcome can be achieved albeit that the evidence that arose from the process of litigation facilitated the agreed-outcome; it highlights the importance of an holistic claim-settlement agreement that takes into account the total needs of the Noongar people and not just narrow cultural needs; it lays the basis for a system of autonomy whereby the Noongar people can manage their own traditional and cultural affairs, as well as becoming involved in contemporary land management, socio-economic and environmental protection initiatives; and it highlights how a statutory contract to resolve a land claim can enable the Noongar community to take responsibility for social, health, welfare, economic, and educational services that far exceed what would traditionally be understood within a

The Noongar Settlement is in effect an agreement to self-govern. The Settlement does not however set up a parallel system that excludes the Noongar people from the Australian institutional and policy arrangements. The Settlement rather supplements the operations of existing governments. It is therefore foreseen that the respective Noongar Corporations will in future provide a wide range of services to

*7.6.4 Heritage protection*

*7.6.5 Noongar Boodja Trust*

**Corporations**

bundle of native title rights.

<sup>87</sup> Ballardong ILUA, Schedule 10, item 18. <sup>88</sup> cl 2.3 Noongar Boodja Trust, at [66]. <sup>89</sup> cl 3.3 Noongar Boodja Trust.

<sup>90</sup> Ballardong ILUA, Schedule 10, item 5.

10, items 16 and 17) which contain objectives of future initiatives and activities.

<sup>78</sup> Ballardong ILUA, Schedule 10, item 8.

<sup>79</sup> Ballardong ILUA, Schedule 10, item 8.1(b).

<sup>80</sup> Ballardong ILUA, Schedule 10, item 9.

<sup>81</sup> Ballardong ILUA, Schedule 10, item 13.

<sup>82</sup> Ballardong ILUA, Schedule 10, item 12.

<sup>83</sup> Ballardong ILUA, Schedule 10, item 17.

<sup>84</sup> Ballardong ILUA, Schedule 10, item 14.

<sup>85</sup> Ballardong ILUA, Schedule 10, item 15.

<sup>86</sup> See for example, the Economic Participation Framework and the Community Development (Schedule

*Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous… DOI: http://dx.doi.org/10.5772/intechopen.86622*

#### *7.6.4 Heritage protection*

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

The *Noongar Land Estate* is created to manage 320,000 hectares of land for purposes of cultural enjoyment; education; and related uses for the benefit of the Noongar people.78 The purpose of the Land Estate is to enable the Noongar people to "achieve sustainable economic, social and cultural outcomes."79 The philosophy of a Noongar Estate is linked to Land Base Strategy that reflects the practical steps to be taken to establish and further expand the land base of the Noongar people. The land forming part of the Estate is to be used exclusively to promote and develop the culture and traditions of the Noongar People. A Noongar Land Fund is also established to assist the respective communities to acquire land in their sub-regions. The state is to make available \$46,850,000 over a 10 year period for the implementation of the Land Fund.80 Adding to the Land Estate transferred to the Noongar people, the Settlement also grants access to the Noongar people to crown (public) land for purposes of cultural and traditional

An important other element of the Noongar Settlement is the opportunity for the Noongar to jointly manage national parks and the conservation estate of the settlement area. These are often areas that a close to the heart of the Noongar people since the environment sought to be protected is also of unique significance to the local Noongar community. As a result of the Settlement joint bodies are formed between state agencies and respective Noongar Corporations to manage the conservation estate within the settlement area and to employ as far as possible Noongar

A number of houses (121) which are occupied by Aboriginal people, are transferred to the Noongar people together with financial support to maintain the houses. In addition, an assistance package has been put in place to help members of the Noongar community to develop business and entrepreneurial skills; and a general community development programme83 is implemented aimed at improving the standard of living of the Noongar people.84 In addition to these initiatives, a major capital works programme has also been launched whereby the state government funds the Noongar to establish administrative offices for the seven Noongar Corporations.85 Aspects of the Settlement are clearly aspirational, with detail to be developed over time,86 but at the same time the essence of the settlement is reflected namely that it is not only the cultural aspirations of the Noongar that are

addressed, but the socio-economic ideals of the community as well.

10, items 16 and 17) which contain objectives of future initiatives and activities.

<sup>86</sup> See for example, the Economic Participation Framework and the Community Development (Schedule

*7.6.1 Land access and management*

activities.81

*7.6.2 Joint management of land*

people to work within those conservation areas.82

*7.6.3 Housing and development programme*

 Ballardong ILUA, Schedule 10, item 8. Ballardong ILUA, Schedule 10, item 8.1(b). Ballardong ILUA, Schedule 10, item 9. Ballardong ILUA, Schedule 10, item 13. Ballardong ILUA, Schedule 10, item 12. Ballardong ILUA, Schedule 10, item 17. Ballardong ILUA, Schedule 10, item 14. Ballardong ILUA, Schedule 10, item 15.

**150**

A standard heritage protocol is set out to regulate access to Noongar lands and traditional sites of importance.87 The protocol sets out the manner in which heritage surveys are conducted; the persons to be involved; the object of the surveys; and the possibility to review the protocol from time to time.

#### *7.6.5 Noongar Boodja Trust*

The *Noongar Boodja Trust* is established as an overarching trust to hold, manage and control all benefits that accrue from the Noongar Settlement on behalf of the Noongar people. The objects of the Trust include support of the seven Noongar Corporations; to hold and manage Noongar land; to hold and manage the Future Fund on behalf of the Noongar; to manage a land and housing fund on behalf of the Noongar; and to make investments on behalf of the Noongar people.88 The Trust is also responsible to promote and facilitate good corporate governance of the seven Noongar Corporations and effective communication between the Noongar people and the Corporations.89 The Trust is also responsible to oversee and manage the contributions received from government for the operations of the Trust and projects for the Noongar people. The government of Western Australia contributes A\$50 million per annum for 12 years towards future funds for the Corporations. The Trust may use its income to undertake projects; initiative activities; make investments and do whatever it deems to be in the interest of the language, culture and general wellbeing of the Noongar People. In addition, the government of Western Australia also contributes A\$10 million per annum to the operations funds to the operating costs of the offices of the Corporations.90

#### **8. Reflection on the privatised self-government of the Noongar Corporations**

The Noongar Settlement is ground-breaking in many respects. It demonstrates how a non-litigated outcome can be achieved albeit that the evidence that arose from the process of litigation facilitated the agreed-outcome; it highlights the importance of an holistic claim-settlement agreement that takes into account the total needs of the Noongar people and not just narrow cultural needs; it lays the basis for a system of autonomy whereby the Noongar people can manage their own traditional and cultural affairs, as well as becoming involved in contemporary land management, socio-economic and environmental protection initiatives; and it highlights how a statutory contract to resolve a land claim can enable the Noongar community to take responsibility for social, health, welfare, economic, and educational services that far exceed what would traditionally be understood within a bundle of native title rights.

The Noongar Settlement is in effect an agreement to self-govern. The Settlement does not however set up a parallel system that excludes the Noongar people from the Australian institutional and policy arrangements. The Settlement rather supplements the operations of existing governments. It is therefore foreseen that the respective Noongar Corporations will in future provide a wide range of services to

<sup>87</sup> Ballardong ILUA, Schedule 10, item 18.

<sup>88</sup> cl 2.3 Noongar Boodja Trust, at [66].

<sup>89</sup> cl 3.3 Noongar Boodja Trust.

<sup>90</sup> Ballardong ILUA, Schedule 10, item 5.

the Noongar people—including as agents for other government departments—in parallel and not to the exclusion of local, state and federal governments.

The Noongar Corporations are registered under civil law and do not in the realm of public law constitute "governments." They are, at law, akin to any other non-governmental association or corporation. In practice however, the nature of the Noongar Settlement and the intention of the parties to settle native title by way of an all-encompassing legally binding agreement, places the Noongar Settlement in a different category than ordinary corporations and associations. The Noongar Settlement is clearly intended and structured to provide a basis of self-government and autonomy to the Noongar people. The nature of objectives of the Noongar Settlement; the spirit underpinning the Settlement; and the sizeable contribution by the state of Western Australia to the ongoing operations and future fund of the Noongar, give rise to a *sui generis* corporation which is created under civil law but operates in the field of public law. The Noongar Corporations are not mere cultural clubs or associations. They have the legal right to access and manage public land; to jointly manage national parks; to protect their cultural heritage; to initiate socioeconomic upliftment programmes; and to be consulted in regard to matters that impact on the Noongar people.

In addition to the functions bestowed on the Noongar Corporations pursuant to the Settlement, as legal entities they may also contract with government departments to become service delivery agents for specific departments. Since the Noongar Corporations speak for and on behalf of the respective Noongar communities, the ability of the Corporations to deliver and manage services to Noongar families may be far better suited than those of ordinary government departments. In areas such as health, education, tourism, land management, social services and care of the elderly, the Noongar Corporations may become essential delivery agents and policy formulating voices.

The nature of the Noongar Settlement will inevitably place the respective Noongar Corporations in an important bi-lateral relationship with the state and local governments of Western Australia. This relationship is in itself unparalleled in Australia. It is inevitable that federal, state and local governments would have to liaise and consult with the Noongar Corporations in regard to policy formulation; new legislation; the budget; and administration of policies to ensure that the interests of the Noongar people are adequately considered. Whereas at a federal level Australia continues to search for a way to establish an advisory body to reflect the views of Aboriginal people, the Noongar Settlement establishes not only a legal base for self-government, but also a forum with which future local, state and federal governments would have to negotiate and consult—typical governance by the Noongar for the Noongar.

The Noongar Corporations is, in effect, a fourth level government. As *de facto* government the Noongar Corporations exercise civil and public powers over the Noongar people by way of incorporated bodies, of which the directors are elected pursuant to the Noongar Settlement, exercising powers and functions on a non-territorial basis, in areas such as educational, health, welfare, housing, employment, tourism, and land care, but not to the exclusion of other government agencies.

#### **9. Conclusion**

The Noongar Settlement is a unique benchmark for a native title settlement in Australia. The nature and detail of the Settlement opens new ground for similar agreements in Australia and beyond. The privatised nature of the Settlement illustrates how within the constraints of three levels of government and challenges

**153**

**Author details**

Bertus de Villiers

University of Johannesburg, South Africa

provided the original work is properly cited.

\*Address all correspondence to: bertusdev@gmail.com

© 2019 The Author(s). Licensee IntechOpen. This chapter is distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/ by/3.0), which permits unrestricted use, distribution, and reproduction in any medium,

*Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous…*

of dispersed communities, self-government arrangements under private law can be developed with possible overflow into the public law arena. The Settlement also highlights how research undertaken as part of litigation can be positively used in settlement negotiations. Ultimately the Noongar Settlement was made possible by the research and evidence supporting the native claim by the Noongar people as the

The Noongar Settlement is a truly *sui generis* outcome and serves as a practical example of privatised autonomy as an avenue for indigenous self-government.

*DOI: http://dx.doi.org/10.5772/intechopen.86622*

traditional owners of the land.

*Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous… DOI: http://dx.doi.org/10.5772/intechopen.86622*

of dispersed communities, self-government arrangements under private law can be developed with possible overflow into the public law arena. The Settlement also highlights how research undertaken as part of litigation can be positively used in settlement negotiations. Ultimately the Noongar Settlement was made possible by the research and evidence supporting the native claim by the Noongar people as the traditional owners of the land.

The Noongar Settlement is a truly *sui generis* outcome and serves as a practical example of privatised autonomy as an avenue for indigenous self-government.

#### **Author details**

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

impact on the Noongar people.

and policy formulating voices.

Noongar for the Noongar.

**9. Conclusion**

the Noongar people—including as agents for other government departments—in

The Noongar Corporations are registered under civil law and do not in the realm of public law constitute "governments." They are, at law, akin to any other non-governmental association or corporation. In practice however, the nature of the Noongar Settlement and the intention of the parties to settle native title by way of an all-encompassing legally binding agreement, places the Noongar Settlement in a different category than ordinary corporations and associations. The Noongar Settlement is clearly intended and structured to provide a basis of self-government and autonomy to the Noongar people. The nature of objectives of the Noongar Settlement; the spirit underpinning the Settlement; and the sizeable contribution by the state of Western Australia to the ongoing operations and future fund of the Noongar, give rise to a *sui generis* corporation which is created under civil law but operates in the field of public law. The Noongar Corporations are not mere cultural clubs or associations. They have the legal right to access and manage public land; to jointly manage national parks; to protect their cultural heritage; to initiate socioeconomic upliftment programmes; and to be consulted in regard to matters that

In addition to the functions bestowed on the Noongar Corporations pursuant to the Settlement, as legal entities they may also contract with government departments to become service delivery agents for specific departments. Since the Noongar Corporations speak for and on behalf of the respective Noongar communities, the ability of the Corporations to deliver and manage services to Noongar families may be far better suited than those of ordinary government departments. In areas such as health, education, tourism, land management, social services and care of the elderly, the Noongar Corporations may become essential delivery agents

The nature of the Noongar Settlement will inevitably place the respective Noongar Corporations in an important bi-lateral relationship with the state and local governments of Western Australia. This relationship is in itself unparalleled in Australia. It is inevitable that federal, state and local governments would have to liaise and consult with the Noongar Corporations in regard to policy formulation; new legislation; the budget; and administration of policies to ensure that the interests of the Noongar people are adequately considered. Whereas at a federal level Australia continues to search for a way to establish an advisory body to reflect the views of Aboriginal people, the Noongar Settlement establishes not only a legal base for self-government, but also a forum with which future local, state and federal governments would have to negotiate and consult—typical governance by the

The Noongar Corporations is, in effect, a fourth level government. As *de facto* government the Noongar Corporations exercise civil and public powers over the Noongar people by way of incorporated bodies, of which the directors are elected pursuant to the Noongar Settlement, exercising powers and functions on a non-territorial basis, in areas such as educational, health, welfare, housing, employment, tourism, and land care, but not to the exclusion of other government agencies.

The Noongar Settlement is a unique benchmark for a native title settlement in Australia. The nature and detail of the Settlement opens new ground for similar agreements in Australia and beyond. The privatised nature of the Settlement illustrates how within the constraints of three levels of government and challenges

parallel and not to the exclusion of local, state and federal governments.

**152**

Bertus de Villiers University of Johannesburg, South Africa

\*Address all correspondence to: bertusdev@gmail.com

© 2019 The Author(s). Licensee IntechOpen. This chapter is distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/ by/3.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.

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*Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous…*

*DOI: http://dx.doi.org/10.5772/intechopen.86622*

Publications/11.Authorisation%20 of%20Area%20Agreements.pdf [Accessed: 3 March 2019]

[59] ILUA. Available from: https:// www.dpc.wa.gov.au/swnts/Pages/ Publications.aspx [Accessed: 12 March

[Accessed: 9 March 2019]

[Accessed: 7 March 2019]

March 2019]

6 March 2019]

item 6.2

[61] Ballardong People Indigenous Land Use Agreement. Available from: https://www.dpc.wa.gov.au/swnts/ Documents/Ballardong%20People%20 Indigenous%20Land%20Use%20 Agreement-OCRd%20version.pdf

[62] McDonald J. Noongar Governance Structure Manual. Private Law Frim. 2016. Available from: https://www. dpc.wa.gov.au/swnts/Documents/ Noongar%20Governance%20 Structure%20Manual%20

20-12-2016-JacMac.pdf [Accessed: 1

[63] Available from: http://www. noongar.org.au/formal-docs [Accessed:

[64] The South West Native Title Settlement. Available from: https:// www.dpc.wa.gov.au/swnts/Documents/ Fact%20Sheet%20-%20Noongar%20 Corporations%20-%20September%20 2017.pdf [Accessed: 19 March 2019]

[65] Ballardong ILUA, supra note 43,

[66] Noongar Boodja Trust. Available from: https://www.dpc.wa.gov.au/ swnts/Documents/Ballardong%20 People%20Indigenous%20Land%20 Use%20Agreement-OCRd%20version.

pdf [Accessed: 22 March 2019]

[60] South West Native Title Settlement. Available from: https://www.dpc. wa.gov.au/swnts/South-West-Native-Title-Settlement/Pages/default.aspx

2019]

*Privatised Autonomy for the Noongar People of Australia: A New Model for Indigenous… DOI: http://dx.doi.org/10.5772/intechopen.86622*

Publications/11.Authorisation%20 of%20Area%20Agreements.pdf [Accessed: 3 March 2019]

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

discussion\_paper/whats-needed-toprove-native-title.pdf [Accessed: 9 April

[49] Risk v Northern Territory of Australia [2006] FCA 404

History. Perth: UWAP; 2009

(2006) FCA 1243

2 April 2019]

[50] Host J. It's Still in my Heart: This Is my Country: The Single Noongar Claim

[51] Barrie GN. Land claims by indigenous peoples—Litigation versus settlements? Observations on the Richtersveld litigation route followed in South Africa versus the Noongar settlement route followed in Western Australia. Journal of South Africa Law. 2018;**2**:344-366

[52] Bennell v State of Western Australia

[53] Thieberger N. Linguistic report on the single Noongar native title claim. 2004. par 134. Available from: https:// minerva-access.unimelb.edu.au/

bitstream/handle/11343/27658/250994\_

NoongarNTLinguisticReport. pdf?sequence=1&isAllowed=y [Accessed: 10 April 2019]

[54] Statement of Justice Wilcox. Available from: http://www.judgments. fedcourt.gov.au/judgments/Judgments/ fca/single/2006/2006fca1243 [Accessed:

[55] Land Administration (South West Native Title Settlement) Act 2016 (WA) (Noongar Land Administration Act)

[56] Available from: http://www. noongar.org.au/images/pdf/forms/ Final%20Quick%20Web%20 Version%20edited%20for%20Gov\_ v2.pdf [Accessed: 1 April 2019]

[57] Native Title Act 1993. 18 October 2018. Available from: http://www. noongar.org.au/news-and-events [Accessed: 12 March 2019]

[58] ILUA. Available from: http:// www.nntt.gov.au/Information%20

2019]

auspublaw.org/2018/10/the-noongarsettlement-two-lessons-for-treatymaking-in-australia/ [Accessed: April

[39] Available from: https://www. indigenous.gov.au/western-viewperths-noongar-community [Accessed:

[40] Available from: https://www. noongarculture.org.au/noongar/

[42] Available from: https://www. nationmaster.com/country-info/groupstats/European-Union/Geography/ Area/Total [Accessed: 7 April 2019]

[Accessed: 6 April 2019]

[2002] HCA 58

[44] Members of the Yorta Yorta Aboriginal Community v Victoria

[43] South West Native Title Settlement. Available from: https://www.dpc. wa.gov.au/swnts/South-West-Native-Title-Settlement/Pages/default.aspx

[45] Western Australia v Ward (2000) 99 FCR 316, [114-117] (Beaumont and von Doussa JJ); Daniel v Western Australia [2003] FCA 666 (3 July 2003) [146]

[46] Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1, [339]

[47] Native Title Act 1993 (Cth) s 223(1)

[48] Duff N. What's Needed to Prove Native Title? Finding Flexibility in the Law of Connection. Canberra: AIATSIS; 2014, Available from: https://aiatsis. gov.au/sites/default/files/products/

[41] Host J, Owen C. It's Still in my Heart, This is my Country, The Single Noongar Claim. Perth: UWA Publishing; 2007. p. 124. Available from: https://www. noongarculture.org.au/connection-tocountry/ [Accessed: 12 March 2019]

[Accessed: 4 April 2019]

2019]

4 April 2019]

**156**

(a)–(b)

[59] ILUA. Available from: https:// www.dpc.wa.gov.au/swnts/Pages/ Publications.aspx [Accessed: 12 March 2019]

[60] South West Native Title Settlement. Available from: https://www.dpc. wa.gov.au/swnts/South-West-Native-Title-Settlement/Pages/default.aspx [Accessed: 9 March 2019]

[61] Ballardong People Indigenous Land Use Agreement. Available from: https://www.dpc.wa.gov.au/swnts/ Documents/Ballardong%20People%20 Indigenous%20Land%20Use%20 Agreement-OCRd%20version.pdf [Accessed: 7 March 2019]

[62] McDonald J. Noongar Governance Structure Manual. Private Law Frim. 2016. Available from: https://www. dpc.wa.gov.au/swnts/Documents/ Noongar%20Governance%20 Structure%20Manual%20 20-12-2016-JacMac.pdf [Accessed: 1 March 2019]

[63] Available from: http://www. noongar.org.au/formal-docs [Accessed: 6 March 2019]

[64] The South West Native Title Settlement. Available from: https:// www.dpc.wa.gov.au/swnts/Documents/ Fact%20Sheet%20-%20Noongar%20 Corporations%20-%20September%20 2017.pdf [Accessed: 19 March 2019]

[65] Ballardong ILUA, supra note 43, item 6.2

[66] Noongar Boodja Trust. Available from: https://www.dpc.wa.gov.au/ swnts/Documents/Ballardong%20 People%20Indigenous%20Land%20 Use%20Agreement-OCRd%20version. pdf [Accessed: 22 March 2019]

**159**

Section 5

Europe - Russia and

Ukraine

Section 5

## Europe - Russia and Ukraine

**161**

tion of the USSR [2].

**Chapter 9**

**Abstract**

of the Soviet times.

**1. Introduction**

recognitions, reparations

Legal Statute and Perspectives for

In this chapter the specific issues of legal statute and perspectives of the development of Indigenous Peoples in Ukraine are highlighted. The situation of occupation and attempt of annexation of the Crimean peninsula as the native land of three Indigenous Peoples (Crimean Karaites, Crimean Tatars, and Krymchaks) in conditions of the ongoing interstate conflict and internal displacement are determined. The aspects of recognition of the indigenous statute in Ukrainian, Russian, and international jurisdictions for those Indigenous People will be researched, as the reparations and reconciliations for such peoples as victims of international crimes

For the last decades, three ethnic groups residing in Ukraine struggled for the recognition as Indigenous Peoples and their coherent rights—Crimean Karaites, Crimean Tatars, and Krymchaks. Crimean Tatars (CTs) are the Indigenous People (IP) residing in Crimea, deported from the peninsula by illegal acts of the Soviet government in 1944 and particularly repatriated to Crimea in 1989–2010; they have approximately 200,000 representatives in Ukraine, first of all in Crimea. Crimean Karaites (CKs) and Krymchaks are the IPs which are non-numerous peoples, having

Before World War II, all state authorities that controlled Crimea recognized those three ethnic groups as peoples (nations), traditional for Crimean peninsula. At the same time, Russian authorities during the nineteenth century held the policy of discrimination of the CTs and promoted their emigration from Crimea to the third countries. Krymchaks were discriminated by the Russian authorities' practices in the framework of the anti-Semitic law and till 1917 as People with Judaism as their traditional religion. In 1941 Krymchaks were the victims of genocide (Holocaust) in Crimea during the Nazi occupation. In 1944 CTs were the victims of genocide (forced deportation) under the control of the Soviet authorities. In Soviet period since 1967, the USSR state authorities rejected the statute of CTs as separate ethnic group, they were determined as "Tatars," as the part of undetermined Tatar popula-

Krymchaks and CKs were recognized in independent Ukraine on the regional level as non-numerous peoples in 1992; CTs were recognized by Ukrainian State

Indigenous Peoples in Ukraine

*Borys Babin, Olena Grinenko and Anna Prykhodko*

**Keywords:** annexation, Crimean Karaites, Crimean Tatars, deportation, indigenous peoples, internal displacement, Krymchaks, occupation,

now less than 500 representatives in Ukraine, most of all in Crimea [1].

#### **Chapter 9**

## Legal Statute and Perspectives for Indigenous Peoples in Ukraine

*Borys Babin, Olena Grinenko and Anna Prykhodko*

#### **Abstract**

In this chapter the specific issues of legal statute and perspectives of the development of Indigenous Peoples in Ukraine are highlighted. The situation of occupation and attempt of annexation of the Crimean peninsula as the native land of three Indigenous Peoples (Crimean Karaites, Crimean Tatars, and Krymchaks) in conditions of the ongoing interstate conflict and internal displacement are determined. The aspects of recognition of the indigenous statute in Ukrainian, Russian, and international jurisdictions for those Indigenous People will be researched, as the reparations and reconciliations for such peoples as victims of international crimes of the Soviet times.

**Keywords:** annexation, Crimean Karaites, Crimean Tatars, deportation, indigenous peoples, internal displacement, Krymchaks, occupation, recognitions, reparations

#### **1. Introduction**

For the last decades, three ethnic groups residing in Ukraine struggled for the recognition as Indigenous Peoples and their coherent rights—Crimean Karaites, Crimean Tatars, and Krymchaks. Crimean Tatars (CTs) are the Indigenous People (IP) residing in Crimea, deported from the peninsula by illegal acts of the Soviet government in 1944 and particularly repatriated to Crimea in 1989–2010; they have approximately 200,000 representatives in Ukraine, first of all in Crimea. Crimean Karaites (CKs) and Krymchaks are the IPs which are non-numerous peoples, having now less than 500 representatives in Ukraine, most of all in Crimea [1].

Before World War II, all state authorities that controlled Crimea recognized those three ethnic groups as peoples (nations), traditional for Crimean peninsula. At the same time, Russian authorities during the nineteenth century held the policy of discrimination of the CTs and promoted their emigration from Crimea to the third countries. Krymchaks were discriminated by the Russian authorities' practices in the framework of the anti-Semitic law and till 1917 as People with Judaism as their traditional religion. In 1941 Krymchaks were the victims of genocide (Holocaust) in Crimea during the Nazi occupation. In 1944 CTs were the victims of genocide (forced deportation) under the control of the Soviet authorities. In Soviet period since 1967, the USSR state authorities rejected the statute of CTs as separate ethnic group, they were determined as "Tatars," as the part of undetermined Tatar population of the USSR [2].

Krymchaks and CKs were recognized in independent Ukraine on the regional level as non-numerous peoples in 1992; CTs were recognized by Ukrainian State

authorities as separate ethnic group. From the end of the twentieth century, those three ethnic groups demanded from Ukraine, international structures, and world community to recognize their rights as IPs.

Issues of defense and support for the rights of the IPs of Ukraine in modern conditions are tightly united with their recognition as Indigenous Peoples, with established and real possibilities for reparation of their violated collective and individual rights, and with issues for reconciliation in conditions of the interstate conflict, ongoing in Ukraine and related to Crimea as to the native land of the IPs. Occupation and attempt of annexation of Crimea by the Russian Federation (RF) in 2014, spreading the Russian national jurisdiction, economic, social, cultural, and ethnic policy over Crimea, totally changed the situation in the peninsula for IPs and their representatives, including issues of recognition, reparation, and reconciliation. Those issues since 2014 were lightened in a few scientific researches (N. Belitzer, E. Pleshko, A. Prykhodko, E. Topalova) with a very limited attention on the aspects of changes of the IPs' legal regime in Crimea and of those changes' reflection in the international normative acts.

So the target of this research is to establish the real situation with legal regime and statute, including recognitions, reparations, and reconciliation, for IPs of Ukraine.

#### **2. Issues of recognition, reparations, and reconciliation of the Indigenous Peoples of Ukraine**

#### **2.1 Recognition**

After the political decision of the problem of the Crimean autonomy in Ukraine during 1991–1996, as experts point, the modern Ukrainian Constitution of 1996 did not relate the legal grounds of the Autonomous Republic of Crimea (ARC) to the statute of the CTs and/or of other Ukrainian IPs. At the same time, the Constitution of the ARC, 1998, did not contain any reference to the IPs or their rights, neither for the legal ground of the autonomy not to defend them on the normative level. Establishment of the official statute for the Crimean Tatar language (both as for the Russian and Ukrainian languages) was the only formal relation with CTs in this Constitution [3].

But we should recognize that social and state Ukrainian institutions provided for that period the possibility to reflect on the Constitutional level the existence of the IPs of Ukraine as the constituent elements of the multinational Ukrainian People. It made essential legal grounds for development of their statute and recognition of their rights, for establishment of the national constitutional institute of IPs.

So Art. 11 of the Ukrainian Constitution, reflected in some researches, guaranteed that the state will promote the development of ethnic, cultural, linguistic, and religious identity of all IPs of Ukraine. More, as it was established in Art. 92 of this act, the rights of IPs must be defined by the special Ukrainian law. Regarding to the part 3 of Art. 119 of the Ukrainian Constitution, the local state administrations must realize on coherent territories, for areas of the IPs' settlement, and the execution of their cultural development programs. At the same time, Ukrainian Constitution fixed in those provisions the similar guarantees for all the national minorities [3].

In independent Ukraine in 1991–2014, those IPs had some problems with realization of their rights, but those violations were caused by common problems of the development of the new post-Soviet state. Norms of Ukrainian Constitution (art. 11, 92 and 119) introduced to its text with the "IPs" term became possible due to the peculiarities of the democratic process of adoption of this act in June 1996. Alas,

**163**

*Legal Statute and Perspectives for Indigenous Peoples in Ukraine*

Ukraine has not passed later the legislation that would specify those provisions of

Experts point that according to the governmental draft of the concept of the state ethnic policy of Ukraine, elaborated in 2000–2001, IPs were defined as the autochthonous ethnic community, whose ethnic descent and germination were in the boards of modern Ukrainian state, who are in minority for all-Ukrainian ethnic quantities and have no ethnic-kin state forming out of the Ukrainian territory. A number of Ukrainian Laws adopted after the Constitution ("on the Supreme Council of ARC," 1998, "on the Local State Administrations," 1999, etc.) comprised the category "IPs" but did not established additional guarantees for such subjects [2]. Also some regional normative acts of the ARC since 1998 formed special legal regime for the Crimean Tatar language in peninsula, but de facto such documents were mush declarative than practical. Not complete recognition of CTs, CKs, and Krymchaks as IPs in this period was caused by escalation of pro-Soviet policy in Crimea in 1990–1998 by Russian immigrants, initiated and supported by the RF that were resettled in Crimea by the Soviet government after World War II [2].

In 1990–2014 Ukraine was trying to preserve the interethnic conflict in Crimea, and, as researchers established, such situation caused practical impossibility for the indigenous land claims, restitution claims, and defamation claims in conditions of their repatriation and reconciliation. The central and local state bodies and municipal entities, legal enforcement structures, courts, and Ukrainian Ombudsman had the common position that all the property taken from the Crimean Tatar owners from 1944 will not be returned to former owners or their successors and will not be compensated. De facto majority of coherent land partials and buildings were transited from state property to the private property of nonindigenous users that controlled it in the late Soviet time, during the common privatization proceeding in Ukraine before 2000 [4]. It caused refusal of official recognition of IPs' rights,

Modern researches prove that in the independent Ukraine, representatives of the

Karaites, CKs, and CTs claimed to be recognized as the IPs. The national movements of CKs and CTs have arranged their specific organizational forms. CTs created the system of Meilis as executive body elected by Qurultai as National Congress since 1991. CKs established the Ulu Beylik as the representative council that was formed by the National Congress of CKs in 2003. The claims of the CKs, CTs, and Krymchaks for their recognition as IPs grounded on such criteria, reflected in the

• Linguistic, cultural, ethnic, and religious identity of those ethnic groups

with those groups in economy, history, and culture

• Own traditional territory for settlement and residing in Ukraine, closely tied

• Appearance and evolution of those groups in Ukraine as peculiar ethnoses, privation of other historic homeland, or ethnic-kin state formation abroad of

More, during the first years of the twenty-first century, some normative acts devoted to the aspects of CKs and Krymchaks statute or reflecting their issues were signed on all-Ukrainian or ARC levels. The law of Ukraine "On Grounds of the State Language Policy," 2012, guaranteed, among some others, the special statute for Krymchak and Karaite languages [5]. The Cabinet of Ministers of

• Indigenous self-consciousness of those ethnic groups' members [3]

*DOI: http://dx.doi.org/10.5772/intechopen.85560*

especially for former deported CTs.

international standards:

Ukraine

the Constitution.

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

community to recognize their rights as IPs.

reflection in the international normative acts.

**Indigenous Peoples of Ukraine**

Ukraine.

**2.1 Recognition**

Constitution [3].

authorities as separate ethnic group. From the end of the twentieth century, those three ethnic groups demanded from Ukraine, international structures, and world

Issues of defense and support for the rights of the IPs of Ukraine in modern conditions are tightly united with their recognition as Indigenous Peoples, with established and real possibilities for reparation of their violated collective and individual rights, and with issues for reconciliation in conditions of the interstate conflict, ongoing in Ukraine and related to Crimea as to the native land of the IPs. Occupation and attempt of annexation of Crimea by the Russian Federation (RF) in 2014, spreading the Russian national jurisdiction, economic, social, cultural, and ethnic policy over Crimea, totally changed the situation in the peninsula for IPs and their representatives, including issues of recognition, reparation, and reconciliation. Those issues since 2014 were lightened in a few scientific researches (N. Belitzer, E. Pleshko, A. Prykhodko, E. Topalova) with a very limited attention on the aspects of changes of the IPs' legal regime in Crimea and of those changes'

So the target of this research is to establish the real situation with legal regime and statute, including recognitions, reparations, and reconciliation, for IPs of

After the political decision of the problem of the Crimean autonomy in Ukraine during 1991–1996, as experts point, the modern Ukrainian Constitution of 1996 did not relate the legal grounds of the Autonomous Republic of Crimea (ARC) to the statute of the CTs and/or of other Ukrainian IPs. At the same time, the Constitution of the ARC, 1998, did not contain any reference to the IPs or their rights, neither for the legal ground of the autonomy not to defend them on the normative level. Establishment of the official statute for the Crimean Tatar language (both as for the Russian and Ukrainian languages) was the only formal relation with CTs in this

But we should recognize that social and state Ukrainian institutions provided for that period the possibility to reflect on the Constitutional level the existence of the IPs of Ukraine as the constituent elements of the multinational Ukrainian People. It made essential legal grounds for development of their statute and recognition of their rights,

So Art. 11 of the Ukrainian Constitution, reflected in some researches, guaranteed that the state will promote the development of ethnic, cultural, linguistic, and religious identity of all IPs of Ukraine. More, as it was established in Art. 92 of this act, the rights of IPs must be defined by the special Ukrainian law. Regarding to the part 3 of Art. 119 of the Ukrainian Constitution, the local state administrations must realize on coherent territories, for areas of the IPs' settlement, and the execution of their cultural development programs. At the same time, Ukrainian Constitution fixed in those provisions the similar guarantees for all the national minorities [3]. In independent Ukraine in 1991–2014, those IPs had some problems with realization of their rights, but those violations were caused by common problems of the development of the new post-Soviet state. Norms of Ukrainian Constitution (art. 11, 92 and 119) introduced to its text with the "IPs" term became possible due to the peculiarities of the democratic process of adoption of this act in June 1996. Alas,

for establishment of the national constitutional institute of IPs.

**2. Issues of recognition, reparations, and reconciliation of the** 

**162**

Ukraine has not passed later the legislation that would specify those provisions of the Constitution.

Experts point that according to the governmental draft of the concept of the state ethnic policy of Ukraine, elaborated in 2000–2001, IPs were defined as the autochthonous ethnic community, whose ethnic descent and germination were in the boards of modern Ukrainian state, who are in minority for all-Ukrainian ethnic quantities and have no ethnic-kin state forming out of the Ukrainian territory. A number of Ukrainian Laws adopted after the Constitution ("on the Supreme Council of ARC," 1998, "on the Local State Administrations," 1999, etc.) comprised the category "IPs" but did not established additional guarantees for such subjects [2].

Also some regional normative acts of the ARC since 1998 formed special legal regime for the Crimean Tatar language in peninsula, but de facto such documents were mush declarative than practical. Not complete recognition of CTs, CKs, and Krymchaks as IPs in this period was caused by escalation of pro-Soviet policy in Crimea in 1990–1998 by Russian immigrants, initiated and supported by the RF that were resettled in Crimea by the Soviet government after World War II [2].

In 1990–2014 Ukraine was trying to preserve the interethnic conflict in Crimea, and, as researchers established, such situation caused practical impossibility for the indigenous land claims, restitution claims, and defamation claims in conditions of their repatriation and reconciliation. The central and local state bodies and municipal entities, legal enforcement structures, courts, and Ukrainian Ombudsman had the common position that all the property taken from the Crimean Tatar owners from 1944 will not be returned to former owners or their successors and will not be compensated. De facto majority of coherent land partials and buildings were transited from state property to the private property of nonindigenous users that controlled it in the late Soviet time, during the common privatization proceeding in Ukraine before 2000 [4]. It caused refusal of official recognition of IPs' rights, especially for former deported CTs.

Modern researches prove that in the independent Ukraine, representatives of the Karaites, CKs, and CTs claimed to be recognized as the IPs. The national movements of CKs and CTs have arranged their specific organizational forms. CTs created the system of Meilis as executive body elected by Qurultai as National Congress since 1991. CKs established the Ulu Beylik as the representative council that was formed by the National Congress of CKs in 2003. The claims of the CKs, CTs, and Krymchaks for their recognition as IPs grounded on such criteria, reflected in the international standards:


More, during the first years of the twenty-first century, some normative acts devoted to the aspects of CKs and Krymchaks statute or reflecting their issues were signed on all-Ukrainian or ARC levels. The law of Ukraine "On Grounds of the State Language Policy," 2012, guaranteed, among some others, the special statute for Krymchak and Karaite languages [5]. The Cabinet of Ministers of

Ukraine (CMU) adopted Prescript No. 187-р on 2001 which was ordered to the Council of Ministers of ARC and to the Ukrainian Ministry of Justice to investigate the aspects of the realization of the rights of CKs and Krymchaks, preparing, if necessary, relevant proposals to the CMU [6]. More, in 2004 CMU assumed the state program for the Intangible Cultural Heritage Defense and Preservation, 2002–2008 (Resolution No. 1732). This program foreseen the duty of the Council of Ministers of ARC and the Ukrainian National Academy of Science for the organization of the scientific researches in the fields of the cultural heritage and history of Krymchaks and CKs [7]. Measures of preserving the Historic-Cultural Heritage of CKs and Krymchaks for 2012 were adopted by the Resolution of Verkhovna Rada of ARC No. 582-6/11 on 2011 [8].

Experts point that after the development of Russian aggression, in March 2014, the Ukrainian parliament (Verkhovna Rada of Ukraine, VRU) adopted the statement on the guarantees for the rights of the Crimean Tatar people (CTP) in Ukraine (Resolution No. 1140-VII). By this statement Ukraine declared and guaranteed the development and defense of the CTP cultural, ethnic, religious, and linguistic identity as an IP features [9]. This statement referenced in its preamble the principles and goals reflected in the first articles of the UN Charter and International Covenant on Economic, Social and Cultural Rights, in Articles 3, 11, and 15 of the Ukrainian Constitution. More, in part 4 of this statement (point 4), the support to the UN Declaration on the Rights of Indigenous Peoples (DRIP) was established [3].

By this statement Ukraine recognized "the inherent right of self-determination of the CTP in the sovereign and independent Ukrainian State" and confirmed the statue of the Mejlis and Kurultay of the CTP, as this people's representative bodies. This Parliament Act prescribed to the CMU to prepare urgently the drafts of Ukrainian laws and other normative acts, regulating the status of the IPs. The statement was prescribed to elaborate those legal drafts consulting with the Mejlis, with cooperation of the UN, OSCE, and Council of Europe, implementing the international norms and standards of IPs, minorities and human rights (HRs) [9].

Also this Parliament Act banned (in Art. 8) any endeavor to limit any civil, social, or political rights of citizens of Ukraine related to various ethnic groups residing in Crimea, such as Armenians, Bulgarians, Crimean Tatars, Germans, Greeks, Karaites, Krymchaks, Russians, and Ukrainians, including aspects of the illegal "referendum" in the peninsula. This statement may be determined as historic act, and its realization of the international level was done in the framework of the annual session of the UN Permanent Forum on Indigenous Issues (PFII) in May 2014 [3].

As it is reflected in some essays, exactly on May 13, 2014, at the PFII session, the officer of the Ukrainian Mission before the UN made the formal declaration on behalf of the Ukrainian government on the support of the DRIP by Ukraine. Such act may be determined as being in compliance with other relevant unilateral acts of states for the recognition of the DRIP role, but issued, in common, by national supreme executive bodies (Australian, Canadian, Columbian, and New Zealand governments for DRIP in 2008–2013), not by the parliaments [3].

Alas, special Ukrainian law on statute of the IPs of Ukraine in conditions of permanent Ukrainian-Russian conflict is not still adopted. Anyway the project of such law (No. 4501) was registered in VRU in 1 day with the project of statement No. 1140-VII; the project was adopted in a first reading only.

A month later, attempting to make the annexation of the Crimea, the Russian President signed Decree No. 268, 2014, "On the Actions to Rehabilitate the Armenian, Bulgarian, Greek, Crimean Tatar and German Peoples and on the State Support of their Recovery and Development" [10]. The scientists insist that this act totally disregards the issues of CTs, as deported and as IP, and provides them the similar rights with the representatives of the European nations resettled to the

**165**

*Legal Statute and Perspectives for Indigenous Peoples in Ukraine*

rights brutally violated by the Soviet regime [10].

any special judicial procedure for CTs [11].

Crimea during the nineteenth century. Such equalization must be determined as the policy of assimilation of the CTP and refusal in recognition and support of their indigenous rights. More, the human rights purport of this Decree is too poor and

This Decree reflected the attitude of the Russian government on such ethnic issues, with total confidence in own competence to "rehabilitate" all Bulgarian or Armenian people, neither taking to regard the real statute of such ethnic groups as minorities nor connecting those issues with the ethnic-kin states of those European nations. More, this act reflected the declarative provisions not the certain mechanisms; any of its norms cannot be executed for preserving and renovating the CTP

Other acts of Russian authorities in Crimea regarding to those issues was not even finalized. This draft of "law" of the "Republic of Crimea" (RC) No. 1520/30-10 "On Some Guarantees for the Rights of Peoples, Deported without Court Order on the Ethnic Ground during 1941–1944 from the Crimean Autonomous Soviet Socialist Republic" was primarily voted by the "State Council" of RC on June 4, 2014, but did not "enter into force." This draft did not mention the IPs' issues and did not establish the illegality of Soviet deportations; it did not provide any rights or compensation mechanisms for CTs, regarding only for some Soviet-style "actions for social defense" like compensation for ticket to Crimea. This draft did not foresee

For the reason of increasing of the international attention to IPs in Crimea, the Russian occupation authorities decided to implement the indigenous legislation of the RF in relation to the CKs and Krymchaks. As we pointed before, those actions of Russian authorities used to make some propaganda and political influence, as the RF did not foresee the real problem from possible behavior of some hundreds of CKs and only hundreds of Krymchaks for Russian regime in Crimea. That is why the "State Council" of the RC voted in 2014 for the "Resolution" No. 2254-6/14 "On Introducing the Offers to the Government of the RF "On the Comprising the CKs and Krymchaks to the United List of Indigenous Non-Numerous Peoples of the RF." Such act confirmed the presence in a multiethnic Crimean community the non-

This "resolution" grounded itself on the historic formation of those peoples in Crimea, with the "complex and multi-layered ethnic genesis," regarded the ethnic oneness, cultural specification, and religious identity of those IPs [12]. But, as experts proved, this "resolution" stipulated the elaboration of the draft of Russian government's resolution presented officially for the public consideration in late June 2014 on the state web source, but this normative act was not adopted. Later the issue of including the CKs and Krymchaks to the Unified List of Indigenous Non-Numerous Peoples of the RF discussed some times during 2015–2019 but was not realized [13]. Later, in 2015, project No. 2680 of the statement of VRU on preserving in Ukraine the originality and cultural heritage of CKs (Karays) and Krymchaks was registered by some deputies in the Ukrainian parliament. It was supported by the relevant parliamentary committees—on aspects of culture and morality and on HRs, national minorities and ethnic relations in May 2015 but did not supported by VRU. The identical project No. 4827 was registered in VRU in 2016, also with support of relevant committees [14], but it also was not voted by the parliament. In 2015, CMU voted for the Action Plan for the National HRs Strategy Implementation. Regarding to its art. 112, point 10, the Ukrainian Ministry of Culture, engaging NGO and foreign experts, was able to elaborate, before 2017, the draft of the Law on IPs of Ukraine. This provision of the action plan was not executed, but the alternative draft was prepared and presented by some NGO like Crimean Tatar Resource Center and Foundation on Research and Support of

numerous IPs, such as CKs and Krymchaks, with special statute [12].

not in compliance with the international standards of the IPs' rights [4].

*DOI: http://dx.doi.org/10.5772/intechopen.85560*

#### *Legal Statute and Perspectives for Indigenous Peoples in Ukraine DOI: http://dx.doi.org/10.5772/intechopen.85560*

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

Verkhovna Rada of ARC No. 582-6/11 on 2011 [8].

Ukraine (CMU) adopted Prescript No. 187-р on 2001 which was ordered to the Council of Ministers of ARC and to the Ukrainian Ministry of Justice to investigate the aspects of the realization of the rights of CKs and Krymchaks, preparing, if necessary, relevant proposals to the CMU [6]. More, in 2004 CMU assumed the state program for the Intangible Cultural Heritage Defense and Preservation, 2002–2008 (Resolution No. 1732). This program foreseen the duty of the Council of Ministers of ARC and the Ukrainian National Academy of Science for the organization of the scientific researches in the fields of the cultural heritage and history of Krymchaks and CKs [7]. Measures of preserving the Historic-Cultural Heritage of CKs and Krymchaks for 2012 were adopted by the Resolution of

Experts point that after the development of Russian aggression, in March 2014, the Ukrainian parliament (Verkhovna Rada of Ukraine, VRU) adopted the statement on the guarantees for the rights of the Crimean Tatar people (CTP) in Ukraine (Resolution No. 1140-VII). By this statement Ukraine declared and guaranteed the development and defense of the CTP cultural, ethnic, religious, and linguistic identity as an IP features [9]. This statement referenced in its preamble the principles and goals reflected in the first articles of the UN Charter and International Covenant on Economic, Social and Cultural Rights, in Articles 3, 11, and 15 of the Ukrainian Constitution. More, in part 4 of this statement (point 4), the support to the UN Declaration on the Rights of Indigenous Peoples (DRIP) was established [3]. By this statement Ukraine recognized "the inherent right of self-determination

of the CTP in the sovereign and independent Ukrainian State" and confirmed the statue of the Mejlis and Kurultay of the CTP, as this people's representative bodies. This Parliament Act prescribed to the CMU to prepare urgently the drafts of Ukrainian laws and other normative acts, regulating the status of the IPs. The statement was prescribed to elaborate those legal drafts consulting with the Mejlis, with cooperation of the UN, OSCE, and Council of Europe, implementing the international norms and standards of IPs, minorities and human rights (HRs) [9]. Also this Parliament Act banned (in Art. 8) any endeavor to limit any civil, social, or political rights of citizens of Ukraine related to various ethnic groups residing in Crimea, such as Armenians, Bulgarians, Crimean Tatars, Germans, Greeks, Karaites, Krymchaks, Russians, and Ukrainians, including aspects of the illegal "referendum" in the peninsula. This statement may be determined as historic act, and its realization of the international level was done in the framework of the annual session of the

UN Permanent Forum on Indigenous Issues (PFII) in May 2014 [3].

governments for DRIP in 2008–2013), not by the parliaments [3].

No. 1140-VII; the project was adopted in a first reading only.

As it is reflected in some essays, exactly on May 13, 2014, at the PFII session, the officer of the Ukrainian Mission before the UN made the formal declaration on behalf of the Ukrainian government on the support of the DRIP by Ukraine. Such act may be determined as being in compliance with other relevant unilateral acts of states for the recognition of the DRIP role, but issued, in common, by national supreme executive bodies (Australian, Canadian, Columbian, and New Zealand

Alas, special Ukrainian law on statute of the IPs of Ukraine in conditions of permanent Ukrainian-Russian conflict is not still adopted. Anyway the project of such law (No. 4501) was registered in VRU in 1 day with the project of statement

A month later, attempting to make the annexation of the Crimea, the Russian

Armenian, Bulgarian, Greek, Crimean Tatar and German Peoples and on the State Support of their Recovery and Development" [10]. The scientists insist that this act totally disregards the issues of CTs, as deported and as IP, and provides them the similar rights with the representatives of the European nations resettled to the

President signed Decree No. 268, 2014, "On the Actions to Rehabilitate the

**164**

Crimea during the nineteenth century. Such equalization must be determined as the policy of assimilation of the CTP and refusal in recognition and support of their indigenous rights. More, the human rights purport of this Decree is too poor and not in compliance with the international standards of the IPs' rights [4].

This Decree reflected the attitude of the Russian government on such ethnic issues, with total confidence in own competence to "rehabilitate" all Bulgarian or Armenian people, neither taking to regard the real statute of such ethnic groups as minorities nor connecting those issues with the ethnic-kin states of those European nations. More, this act reflected the declarative provisions not the certain mechanisms; any of its norms cannot be executed for preserving and renovating the CTP rights brutally violated by the Soviet regime [10].

Other acts of Russian authorities in Crimea regarding to those issues was not even finalized. This draft of "law" of the "Republic of Crimea" (RC) No. 1520/30-10 "On Some Guarantees for the Rights of Peoples, Deported without Court Order on the Ethnic Ground during 1941–1944 from the Crimean Autonomous Soviet Socialist Republic" was primarily voted by the "State Council" of RC on June 4, 2014, but did not "enter into force." This draft did not mention the IPs' issues and did not establish the illegality of Soviet deportations; it did not provide any rights or compensation mechanisms for CTs, regarding only for some Soviet-style "actions for social defense" like compensation for ticket to Crimea. This draft did not foresee any special judicial procedure for CTs [11].

For the reason of increasing of the international attention to IPs in Crimea, the Russian occupation authorities decided to implement the indigenous legislation of the RF in relation to the CKs and Krymchaks. As we pointed before, those actions of Russian authorities used to make some propaganda and political influence, as the RF did not foresee the real problem from possible behavior of some hundreds of CKs and only hundreds of Krymchaks for Russian regime in Crimea. That is why the "State Council" of the RC voted in 2014 for the "Resolution" No. 2254-6/14 "On Introducing the Offers to the Government of the RF "On the Comprising the CKs and Krymchaks to the United List of Indigenous Non-Numerous Peoples of the RF." Such act confirmed the presence in a multiethnic Crimean community the nonnumerous IPs, such as CKs and Krymchaks, with special statute [12].

This "resolution" grounded itself on the historic formation of those peoples in Crimea, with the "complex and multi-layered ethnic genesis," regarded the ethnic oneness, cultural specification, and religious identity of those IPs [12]. But, as experts proved, this "resolution" stipulated the elaboration of the draft of Russian government's resolution presented officially for the public consideration in late June 2014 on the state web source, but this normative act was not adopted. Later the issue of including the CKs and Krymchaks to the Unified List of Indigenous Non-Numerous Peoples of the RF discussed some times during 2015–2019 but was not realized [13].

Later, in 2015, project No. 2680 of the statement of VRU on preserving in Ukraine the originality and cultural heritage of CKs (Karays) and Krymchaks was registered by some deputies in the Ukrainian parliament. It was supported by the relevant parliamentary committees—on aspects of culture and morality and on HRs, national minorities and ethnic relations in May 2015 but did not supported by VRU. The identical project No. 4827 was registered in VRU in 2016, also with support of relevant committees [14], but it also was not voted by the parliament.

In 2015, CMU voted for the Action Plan for the National HRs Strategy Implementation. Regarding to its art. 112, point 10, the Ukrainian Ministry of Culture, engaging NGO and foreign experts, was able to elaborate, before 2017, the draft of the Law on IPs of Ukraine. This provision of the action plan was not executed, but the alternative draft was prepared and presented by some NGO like Crimean Tatar Resource Center and Foundation on Research and Support of the IPs of Crimea. This nongovernmental draft was investigated in 2016 by the experts via the UN EMRIP also as ODIHR OSCE annual sessions, and it got the positive summery by the Legislation Institute of VRU but was not registered in the Ukrainian parliament [15].

Steps of the RF for legitimating the attempt of annexation of Crimea were not recognized by the world community; more, those steps were recognized as dangerous for HRs and for the rights of IPs. So, the UN General Assembly (UN GA) Resolution 68/262 "Territorial integrity of Ukraine" called the subjects of international law do not recognize the changes of the status of the ARC and the city of Sevastopol falling from the so-called "referendum" in 2014, but did not mention the IP issues regarding to Crimea [16]. But in some later acts of the international organizations and bodies, CTs also were recognized as IP. Two 2014 UN OHCHR reports (April and June) on the HR situation in Ukraine pointed the information about the boycott by the "CTs as IP" of the so-called "referendum" in Crimea; also those reports reflected the cases of violence and discrimination against CTs as the IP. By such official statements, the UN OHCHR called the Russian powers in Crimean to preserve the minorities' and the IPs' rights in the peninsula, including the CTs' rights, such as the freedom not to be the victim of deportation from a native land [17].

Researches pointed on the strong statement of the Caucus of IPs on the UN PFII 13th Session against the normative manipulations of Russian authorities with ethnic relations in Crimea. Caucus pointed on the intention to avoid the confession of the statute and rights of CTs, CKs, and Krymchaks as the IPs in Crimea that made those IPs are extremely vulnerable from any discrimination or repressions from the Russian occupying powers. By this statement the Caucus of the IPs declared on the risks floating from the Russian ethnic policy in peninsula that is strongly not in compliance with the IPs well-recognized international standards such as DRIP [18].

Above mentioned explains why in May, 2014, the Caucus of IPs pointed on duty for visit of the Special Rapporteur on the Rights of IPs to Crimea for gathering the relevant data regarding the situation and problems of the IPs. More, experts pointed on Caucus' proposals to include the Crimean IPs' representatives to the deputies of the world conference of IPs that was expected in the autumn of 2014. Additionally Caucus of IPs offered to the RF to confirm the rights of the Indigenous Peoples in Crimea to save their own citizenship, to change or to get dual citizenship freely by own choice, and to travel to and from Crimea without any punishment or distinction for their individual rights [4].

Also on May 12, 2016, the European Parliament (EP) adopted special Resolution 2016/2692 (RSP) on the CTs [19] and were reminded that the entire population of CTs, an IP, was forcibly deported to other parts of the then USSR in 1944, with no right to return until 1989, whereas on November 12, 2015, the VRU adopted a resolution in which it recognized the deportation of the CTs in 1944 as genocide and established May 18 as a Day of Remembrance.

In Art. 2 of Resolution 2016/2692 (RSP), it is pointed out that the ban on the Mejlis of the CTP, which is the legitimate and recognized representative body of the IP of Crimea, will provide fertile ground for stigmatizing the CTs, further discriminating against them and violating their HRs and basic civil liberties, and is an attempt to expel them from Crimea, which is their historical motherland; it is concerned that the branding of the Mejlis as an extremist organization may lead to additional charges in accordance with provisions of the Criminal Code of the RF.

#### **2.2 Reparations and reconciliation**

We mentioned in some essays that from 1991, the Ukrainian state confirmed de facto the specific features of the CTs' politic statute and granted to this ethnos

**167**

territory [22].

*Legal Statute and Perspectives for Indigenous Peoples in Ukraine*

some guarantees. The relevant Agreement on Issues Related to Restoration of the Deported Persons', National Minorities', and Peoples' Rights, must be highlighted; it was signed in Bishkek by group of the post-Soviet states in October 1992 and established common mechanisms of reparations and compensations for individuals, without relevance to their indigenous origin; this treaty was ratified by Ukraine not

Measures taken by Ukraine were connected officially not with indigenous statute or origin of the CTP, but they grounded on a duty to aid the victims of Soviet deportation, which give them the relevant reparations. Those benefits had individual forms; they had ground on programmatic normative acts voted by CMU and ARC bodies without possibility for the CPs' representatives of structures to initiate any judicial proceeding for the recognition of their collective or individual indigenous rights. For example, such Ukrainian normative acts, devoted to CTs, as CMU Decree No. 1952, 2003, or No. 626, 2004, did not establish the transparent administrative or civil proceeding for former deported persons. Special Ukrainian law "On the Restoration of Individuals' Rights, Deported on Ethnic Ground" No 1872IV, was voted by VRU in June 2004. This act foresaw the judicial procedure of confirmation the fact of deportation for the representatives of CTP with special appellation mechanisms for refusals' cases; anyway it was banned by Ukrainian President's

After the Russian attempt to annex the Crimea in 2014, Ukraine voted the Law No. 1207-VII "On the Preserving the Rights and Freedoms of Citizens and on Legal Regime for the Ukrainian Temporarily Occupied Territory." This legal act in its preamble included the duty for protection and total realization of the civil, politic, cultural, and other rights of the Ukrainian citizens in Crimea, "including IPs," into the grounds of the national politics regarding the Ukrainian temporarily occupied

So the scientists point that such legal framework of Law No. 1207-VII covers the IPs' issues for Crimea, and the coherent obligation for Ukrainian authorities to set all the possible steps for securing the constitutional and international standards of rights and freedoms in Crimea is relevant to the public duty to secure the IPs' rights. At the same time, this law points that the responsibility for HRs' violations in Crimea is relied on the RF as on occupier state and as for the relevant "norms and principles of international law." The modern doctrine allows to include the DRIP provisions to those "norms and principles" that Ukraine must execute and demand to execute regarding the situation in Crimea. So Ukraine must demand to realize in Crimea the DRIP provisions, including ban assimilation of the IPs and depriving their integrity, cultural or ethnic features, their traditional lands, territories, and resources. Also Ukraine must counteract to any attempts of the forced displacement

*DOI: http://dx.doi.org/10.5772/intechopen.85560*

by the RF and lost its power before 2104 [20].

veto, and those proceeding did not enter to force [21].

and deportations of the IPs representatives from Crimea [23].

deported person for the CTP representatives.

Experts also stress the importance of the new Law No. 1223-VII "On the Restoration of the Rights of Individuals Deported on Ethnic Grounds" that was voted in 2014. Such law also does not include the "IPs'" category; but its norms contain the term "deported peoples" and regard CTs directly. This law may be determined at the common act that covered all the illegal deportations made by the Soviet state on ethnic grounds on the modern Ukrainian territory. Articles 7–9 of Law No. 1223-VII established the procedures of recognition of the statute of the

Law No. 1223-VII contains the provisions for the real estate and other relevant properties confiscated from deportees by the Soviet state; such possessions must be returned to the deportees or to their successors in nature but only if the preserved buildings are not in private property now. In other circumstances, the deported person's his or her successors must get the financial compensation; both restitution

#### *Legal Statute and Perspectives for Indigenous Peoples in Ukraine DOI: http://dx.doi.org/10.5772/intechopen.85560*

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

the victim of deportation from a native land [17].

tion for their individual rights [4].

**2.2 Reparations and reconciliation**

established May 18 as a Day of Remembrance.

the Ukrainian parliament [15].

the IPs of Crimea. This nongovernmental draft was investigated in 2016 by the experts via the UN EMRIP also as ODIHR OSCE annual sessions, and it got the positive summery by the Legislation Institute of VRU but was not registered in

Steps of the RF for legitimating the attempt of annexation of Crimea were not recognized by the world community; more, those steps were recognized as dangerous for HRs and for the rights of IPs. So, the UN General Assembly (UN GA) Resolution 68/262 "Territorial integrity of Ukraine" called the subjects of international law do not recognize the changes of the status of the ARC and the city of Sevastopol falling from the so-called "referendum" in 2014, but did not mention the IP issues regarding to Crimea [16]. But in some later acts of the international organizations and bodies, CTs also were recognized as IP. Two 2014 UN OHCHR reports (April and June) on the HR situation in Ukraine pointed the information about the boycott by the "CTs as IP" of the so-called "referendum" in Crimea; also those reports reflected the cases of violence and discrimination against CTs as the IP. By such official statements, the UN OHCHR called the Russian powers in Crimean to preserve the minorities' and the IPs' rights in the peninsula, including the CTs' rights, such as the freedom not to be

Researches pointed on the strong statement of the Caucus of IPs on the UN PFII 13th Session against the normative manipulations of Russian authorities with ethnic relations in Crimea. Caucus pointed on the intention to avoid the confession of the statute and rights of CTs, CKs, and Krymchaks as the IPs in Crimea that made those IPs are extremely vulnerable from any discrimination or repressions from the Russian occupying powers. By this statement the Caucus of the IPs declared on the risks floating from the Russian ethnic policy in peninsula that is strongly not in compliance with the IPs well-recognized international standards such as DRIP [18]. Above mentioned explains why in May, 2014, the Caucus of IPs pointed on duty for visit of the Special Rapporteur on the Rights of IPs to Crimea for gathering the relevant data regarding the situation and problems of the IPs. More, experts pointed on Caucus' proposals to include the Crimean IPs' representatives to the deputies of the world conference of IPs that was expected in the autumn of 2014. Additionally Caucus of IPs offered to the RF to confirm the rights of the Indigenous Peoples in Crimea to save their own citizenship, to change or to get dual citizenship freely by own choice, and to travel to and from Crimea without any punishment or distinc-

Also on May 12, 2016, the European Parliament (EP) adopted special Resolution

2016/2692 (RSP) on the CTs [19] and were reminded that the entire population of CTs, an IP, was forcibly deported to other parts of the then USSR in 1944, with no right to return until 1989, whereas on November 12, 2015, the VRU adopted a resolution in which it recognized the deportation of the CTs in 1944 as genocide and

In Art. 2 of Resolution 2016/2692 (RSP), it is pointed out that the ban on the Mejlis of the CTP, which is the legitimate and recognized representative body of the IP of Crimea, will provide fertile ground for stigmatizing the CTs, further discriminating against them and violating their HRs and basic civil liberties, and is an attempt to expel them from Crimea, which is their historical motherland; it is concerned that the branding of the Mejlis as an extremist organization may lead to additional charges in accordance with provisions of the Criminal Code of the RF.

We mentioned in some essays that from 1991, the Ukrainian state confirmed de facto the specific features of the CTs' politic statute and granted to this ethnos

**166**

some guarantees. The relevant Agreement on Issues Related to Restoration of the Deported Persons', National Minorities', and Peoples' Rights, must be highlighted; it was signed in Bishkek by group of the post-Soviet states in October 1992 and established common mechanisms of reparations and compensations for individuals, without relevance to their indigenous origin; this treaty was ratified by Ukraine not by the RF and lost its power before 2104 [20].

Measures taken by Ukraine were connected officially not with indigenous statute or origin of the CTP, but they grounded on a duty to aid the victims of Soviet deportation, which give them the relevant reparations. Those benefits had individual forms; they had ground on programmatic normative acts voted by CMU and ARC bodies without possibility for the CPs' representatives of structures to initiate any judicial proceeding for the recognition of their collective or individual indigenous rights. For example, such Ukrainian normative acts, devoted to CTs, as CMU Decree No. 1952, 2003, or No. 626, 2004, did not establish the transparent administrative or civil proceeding for former deported persons. Special Ukrainian law "On the Restoration of Individuals' Rights, Deported on Ethnic Ground" No 1872IV, was voted by VRU in June 2004. This act foresaw the judicial procedure of confirmation the fact of deportation for the representatives of CTP with special appellation mechanisms for refusals' cases; anyway it was banned by Ukrainian President's veto, and those proceeding did not enter to force [21].

After the Russian attempt to annex the Crimea in 2014, Ukraine voted the Law No. 1207-VII "On the Preserving the Rights and Freedoms of Citizens and on Legal Regime for the Ukrainian Temporarily Occupied Territory." This legal act in its preamble included the duty for protection and total realization of the civil, politic, cultural, and other rights of the Ukrainian citizens in Crimea, "including IPs," into the grounds of the national politics regarding the Ukrainian temporarily occupied territory [22].

So the scientists point that such legal framework of Law No. 1207-VII covers the IPs' issues for Crimea, and the coherent obligation for Ukrainian authorities to set all the possible steps for securing the constitutional and international standards of rights and freedoms in Crimea is relevant to the public duty to secure the IPs' rights. At the same time, this law points that the responsibility for HRs' violations in Crimea is relied on the RF as on occupier state and as for the relevant "norms and principles of international law." The modern doctrine allows to include the DRIP provisions to those "norms and principles" that Ukraine must execute and demand to execute regarding the situation in Crimea. So Ukraine must demand to realize in Crimea the DRIP provisions, including ban assimilation of the IPs and depriving their integrity, cultural or ethnic features, their traditional lands, territories, and resources. Also Ukraine must counteract to any attempts of the forced displacement and deportations of the IPs representatives from Crimea [23].

Experts also stress the importance of the new Law No. 1223-VII "On the Restoration of the Rights of Individuals Deported on Ethnic Grounds" that was voted in 2014. Such law also does not include the "IPs'" category; but its norms contain the term "deported peoples" and regard CTs directly. This law may be determined at the common act that covered all the illegal deportations made by the Soviet state on ethnic grounds on the modern Ukrainian territory. Articles 7–9 of Law No. 1223-VII established the procedures of recognition of the statute of the deported person for the CTP representatives.

Law No. 1223-VII contains the provisions for the real estate and other relevant properties confiscated from deportees by the Soviet state; such possessions must be returned to the deportees or to their successors in nature but only if the preserved buildings are not in private property now. In other circumstances, the deported person's his or her successors must get the financial compensation; both restitution

and compensation may be suited by such person only via 3 years after his or her recognition as deported one [24].

We discussed the practical possibility of implementation in Ukraine criminal proceedings concerning deportations of CTs on ethnic grounds, committed by the Soviet authorities in 1939–1991 [25]. This possibility has become almost confirmed, when on December 2015, the Investigation Department of the Prosecutor's Office of the ARC (which is based in Kiev now) initiated criminal proceedings under Art. 442 "Genocide" of the Criminal Code of Ukraine on the fact of deportation of the CTs.

Before the occupation of Crimea, the Security Service of Ukraine (SSU) together with the Prosecutor General's Office in 2009 started the preliminary investigation for the illegal resettlement of ethnic groups from Crimea that started in 1944. For such investigation the separate group was created in the structure of the SSU Headquarters in the ARC. Until 2010 the SSU investigators researched evidences of this Soviet deportation of the CTP from Crimean peninsula; later their activities were stopped, this SSU special group was disbanded, and all the gathered evidences in 2014 were captured by Russian invaders in Simferopol. After 2014 Russian powers in Crimea did not start any proceeding or investigation regarding to the crime of the CTs' deportation; more they declared officially that all the relevant SSU materials "are lost" [25].

Hence, this proceeding of the Prosecutor's Office of the ARC regarding the events of 1944–1989 with CTP was actually started from scratch and needs the strong support of international structures. These criminal proceedings have some judicial perspectives—as some victims of the deportation are alive and reside in Ukraine, as the huge historic data is still available. More, some witnesses and coparticipants, as of the beginning of the deportation, so of the events of the Soviet counteraction to the initiative resettlement of the CTs to peninsula in 1954–1989, party—some former members of the State Security Committee (KGB) bodies live in Ukraine till now [25].

The historic investigation of those issued is the task of the Ukrainian Institute of National Remembrance regarding to the CMU Resolution No. 684, 2014. Exactly this institute is the central executive body, governing the duties under aegis of the Minister of Culture, in area of assessment "of forced deportations, of such crimes' organizers and executors and of their actions' effects for Ukraine and the World." The duty and possibility of legal enforcement investigation of the Soviet deportations were confirmed by this institute in its letter No. 01/301, 2015 [25].

We must consider the role of military personnel and commanders of the Soviet force structures, the Ministry of International Affairs, the Ministry of State Security, and the KGB of the USSR for organizing the deportation of CTP, for the detention of the deported people in non-freedom regime till 1956, and for permanent counteraction against CTs resettlement to Crimea even since 1967 when such activities of CTs became formally allowed by the Soviet legislation [26].

So there is no doctrinal doubt that the Soviet deportation of CTP from the Crimean peninsula was the international crime without temporal limits for its investigation. Now, even when Crimea is occupied, Ukrainian legal bodies have the necessary jurisdiction for such investigation and judicial proceeding. But the final legal determination of such deportation as a genocide or as other international crimes against humanity must be established in the final act of the competent court. The aid of international bodies for such investigation will be important in conditions of ongoing occupation of Crimea by the RF [26].

But not only investigating the Soviet deportation is important for reparation and reconciliation of the IPs' rights in Ukraine especially for those who become internally displaced persons from Crimea since 2014. For a long period, the Ukrainian government provided minimal assistance to internally displaced persons, many

**169**

*Legal Statute and Perspectives for Indigenous Peoples in Ukraine*

essential services to those who had fled the fighting [27].

recognize the Mejlis actions as "illegal and provocation."

struggle for their indigenous rights in Ukraine [28].

pointed to the sharp deterioration of the overall HRs' situation.

DRIP framework.

or degrading treatment [29].

of whom found themselves in an administrative limbo due to their uncertain legal status. Recognizing the long-term reality of internal displacement for these groups, the legislation was intended to provide better access to legal documentation and

More, the ban of Mejlis of the CTP as an "extremist organization" by the Russian authorities in Crimea and Moscow in 2016 caused the additional violations of the rights of this IP. Threats to ban the Mejlis began in October 2015, and on February 15, 2016, the de facto prosecutor of Russian-controlled "RC" Natalya Poklonskaya announced that an application had been made for the ban, with the claim being that the Mejlis was "extremist." Modern authors point of the "clear Soviet echoes" for this suit of occupier illegal prosecutor that grounded formally on "applications" from CTs structures and local institutions, including their "heads," asking to

The act of banning the Mejlis was given by the so-called "Supreme Court" of RC on April 2016, and it was supported by the Supreme Court of the RF (SCRF) on September 2016 regarding to the appellation of the Mejlis' defenders. This totally illegal and politicized proceeding, the RF tried to determine the Mejlis as a "civic organization" that may be banned for "extremist" activities. More some "evidences" used in this proceeding were totally absurd, such as the document, presented by CTP leader Mustafa Dzhemiev in 1988, or as some Mejlis' documents issued 20 years before the occupation of Crimea by RF. The determination of the "extremism" for the Mejlis de facto was connected in this proceeding with the CTP's

During this proceeding the defense of Mejlis pointed to the SCRF duty to execute the DRIP provisions relating to the Mejlis. Even supporting the position of the "Supreme Court of the RC" to ban the Mejlis, in this case, analyzing the DRIP provisions, SCRF confirmed that DRIP is actually for Russian jurisdiction, including the Mejlis case. By this SCRF de facto recognized the IPs' rights for CTs in the

Issues of violation of CTs' rights were reflected in Resolution 71/205 adopted by the UNGA on December 19, 2016 [29]. In this act the UNGA welcomed the reports of the Office of the UN High Commissioner for HRs on the human rights situation in Ukraine, of the Commissioner for HRs of the Council of Europe, of the HRs assessment mission of the Office for Democratic Institutions, and HRs (ODIHR) and the High Commissioner on National Minorities (HCNM) of the OSCE, in which they stated that violations and abuses of HRs continued to take place in Crimea and

In Resolution 71/205 the UNGA pointed on the reported serious violations of rights of the Crimean residents, including CTs, such as abductions, arbitrary detentions, discrimination, enforced disappearances, extrajudicial killings, harassment, intimidation, politically motivated prosecutions, torture and ill-treatment, transfer of detainees from Crimea to the RF, violence, etc. Also the abuses of the right to peaceful assembly and of the freedoms of association, of expression, and religion or belief were lighted in this UNGA act. In Resolution 71/205 the UNGA demanded the RF to execute a set of occupying power international obligations: to stop

immediately all normative and de facto abuses against Crimean residents, including arbitrary detentions, discriminatory practices and measures, torture, and inhuman

Issues of internal displacement from Crimea were also reflected in Resolution 72/190 adopted by the UNGA on December 19, 2017 [30]. In this act the UNGA condemned again the reported serious violations and abuses committed against the residents of Crimea, in particular extrajudicial killings, abductions, enforced disappearances, politically motivated prosecutions, discrimination, harassment,

*DOI: http://dx.doi.org/10.5772/intechopen.85560*

#### *Legal Statute and Perspectives for Indigenous Peoples in Ukraine DOI: http://dx.doi.org/10.5772/intechopen.85560*

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

recognition as deported one [24].

als "are lost" [25].

Ukraine till now [25].

and compensation may be suited by such person only via 3 years after his or her

We discussed the practical possibility of implementation in Ukraine criminal proceedings concerning deportations of CTs on ethnic grounds, committed by the Soviet authorities in 1939–1991 [25]. This possibility has become almost confirmed, when on December 2015, the Investigation Department of the Prosecutor's Office of the ARC (which is based in Kiev now) initiated criminal proceedings under Art. 442 "Genocide" of the Criminal Code of Ukraine on the fact of deportation of the CTs. Before the occupation of Crimea, the Security Service of Ukraine (SSU) together with the Prosecutor General's Office in 2009 started the preliminary investigation for the illegal resettlement of ethnic groups from Crimea that started in 1944. For such investigation the separate group was created in the structure of the SSU Headquarters in the ARC. Until 2010 the SSU investigators researched evidences of this Soviet deportation of the CTP from Crimean peninsula; later their activities were stopped, this SSU special group was disbanded, and all the gathered evidences in 2014 were captured by Russian invaders in Simferopol. After 2014 Russian powers in Crimea did not start any proceeding or investigation regarding to the crime of the CTs' deportation; more they declared officially that all the relevant SSU materi-

Hence, this proceeding of the Prosecutor's Office of the ARC regarding the events of 1944–1989 with CTP was actually started from scratch and needs the strong support of international structures. These criminal proceedings have some judicial perspectives—as some victims of the deportation are alive and reside in Ukraine, as the huge historic data is still available. More, some witnesses and coparticipants, as of the beginning of the deportation, so of the events of the Soviet counteraction to the initiative resettlement of the CTs to peninsula in 1954–1989, party—some former members of the State Security Committee (KGB) bodies live in

The historic investigation of those issued is the task of the Ukrainian Institute of National Remembrance regarding to the CMU Resolution No. 684, 2014. Exactly this institute is the central executive body, governing the duties under aegis of the Minister of Culture, in area of assessment "of forced deportations, of such crimes' organizers and executors and of their actions' effects for Ukraine and the World." The duty and possibility of legal enforcement investigation of the Soviet deporta-

tions were confirmed by this institute in its letter No. 01/301, 2015 [25].

activities of CTs became formally allowed by the Soviet legislation [26].

tions of ongoing occupation of Crimea by the RF [26].

We must consider the role of military personnel and commanders of the Soviet force structures, the Ministry of International Affairs, the Ministry of State Security, and the KGB of the USSR for organizing the deportation of CTP, for the detention of the deported people in non-freedom regime till 1956, and for permanent counteraction against CTs resettlement to Crimea even since 1967 when such

So there is no doctrinal doubt that the Soviet deportation of CTP from the Crimean peninsula was the international crime without temporal limits for its investigation. Now, even when Crimea is occupied, Ukrainian legal bodies have the necessary jurisdiction for such investigation and judicial proceeding. But the final legal determination of such deportation as a genocide or as other international crimes against humanity must be established in the final act of the competent court. The aid of international bodies for such investigation will be important in condi-

But not only investigating the Soviet deportation is important for reparation and reconciliation of the IPs' rights in Ukraine especially for those who become internally displaced persons from Crimea since 2014. For a long period, the Ukrainian government provided minimal assistance to internally displaced persons, many

**168**

of whom found themselves in an administrative limbo due to their uncertain legal status. Recognizing the long-term reality of internal displacement for these groups, the legislation was intended to provide better access to legal documentation and essential services to those who had fled the fighting [27].

More, the ban of Mejlis of the CTP as an "extremist organization" by the Russian authorities in Crimea and Moscow in 2016 caused the additional violations of the rights of this IP. Threats to ban the Mejlis began in October 2015, and on February 15, 2016, the de facto prosecutor of Russian-controlled "RC" Natalya Poklonskaya announced that an application had been made for the ban, with the claim being that the Mejlis was "extremist." Modern authors point of the "clear Soviet echoes" for this suit of occupier illegal prosecutor that grounded formally on "applications" from CTs structures and local institutions, including their "heads," asking to recognize the Mejlis actions as "illegal and provocation."

The act of banning the Mejlis was given by the so-called "Supreme Court" of RC on April 2016, and it was supported by the Supreme Court of the RF (SCRF) on September 2016 regarding to the appellation of the Mejlis' defenders. This totally illegal and politicized proceeding, the RF tried to determine the Mejlis as a "civic organization" that may be banned for "extremist" activities. More some "evidences" used in this proceeding were totally absurd, such as the document, presented by CTP leader Mustafa Dzhemiev in 1988, or as some Mejlis' documents issued 20 years before the occupation of Crimea by RF. The determination of the "extremism" for the Mejlis de facto was connected in this proceeding with the CTP's struggle for their indigenous rights in Ukraine [28].

During this proceeding the defense of Mejlis pointed to the SCRF duty to execute the DRIP provisions relating to the Mejlis. Even supporting the position of the "Supreme Court of the RC" to ban the Mejlis, in this case, analyzing the DRIP provisions, SCRF confirmed that DRIP is actually for Russian jurisdiction, including the Mejlis case. By this SCRF de facto recognized the IPs' rights for CTs in the DRIP framework.

Issues of violation of CTs' rights were reflected in Resolution 71/205 adopted by the UNGA on December 19, 2016 [29]. In this act the UNGA welcomed the reports of the Office of the UN High Commissioner for HRs on the human rights situation in Ukraine, of the Commissioner for HRs of the Council of Europe, of the HRs assessment mission of the Office for Democratic Institutions, and HRs (ODIHR) and the High Commissioner on National Minorities (HCNM) of the OSCE, in which they stated that violations and abuses of HRs continued to take place in Crimea and pointed to the sharp deterioration of the overall HRs' situation.

In Resolution 71/205 the UNGA pointed on the reported serious violations of rights of the Crimean residents, including CTs, such as abductions, arbitrary detentions, discrimination, enforced disappearances, extrajudicial killings, harassment, intimidation, politically motivated prosecutions, torture and ill-treatment, transfer of detainees from Crimea to the RF, violence, etc. Also the abuses of the right to peaceful assembly and of the freedoms of association, of expression, and religion or belief were lighted in this UNGA act. In Resolution 71/205 the UNGA demanded the RF to execute a set of occupying power international obligations: to stop immediately all normative and de facto abuses against Crimean residents, including arbitrary detentions, discriminatory practices and measures, torture, and inhuman or degrading treatment [29].

Issues of internal displacement from Crimea were also reflected in Resolution 72/190 adopted by the UNGA on December 19, 2017 [30]. In this act the UNGA condemned again the reported serious violations and abuses committed against the residents of Crimea, in particular extrajudicial killings, abductions, enforced disappearances, politically motivated prosecutions, discrimination, harassment,

intimidation, violence, including sexual violence, arbitrary detentions, torture and ill-treatment, in particular to extract confessions, and psychiatric internment and their transfer or deportation from Crimea to the RF, as well as reported abuses of other fundamental freedoms, including the freedoms of expression, religion, or belief and association and the right to peaceful assembly.

In this act the UNGA demanded the RF to reduce all the decisions that banned the Mejlis of the CTP and its activities as the "extremist organization," to cancel the acts banning the Mejlis' leaders to enter Crimea and to stop any other steps for limitations on the rights and possibilities of the CTP to establish and preserve own representative structures. Also in Resolution 72/190, the UNGA supported the efforts of Ukraine to maintain economic, financial, political, social, informational, cultural, and other ties with its citizens in the occupied Crimea in order to facilitate their access to democratic processes, economic opportunities, and objective information.

Some acts of the EP as of the European Union politic representative body also reflect the situation with internal displacement of the indigenous CTs and violation of their individual and collective rights in Crimea that caused such displacement. In Art. 9 of the EP resolution of February 4, 2016, on the HRs' situation in Crimea, in particular of the CTs (2016/2556 (RSP)), the impediments to CTP leaders returning to Crimea and their prosecution were deplored [31].

The resolution of EP 2016/2692 (RSP) on the CTs [19] reflected the concern of the European Union and the international community regarding the current problems for HRs in the occupied peninsula. This act pointed on the pressure over those who did not confirm the "legacy" of the Russian authorities in Crimea; it specially stressed that such so-called powers "targeted the indigenous community" of the CTs, as the majority of the CTP opposed the RF to take control over the peninsula and boycotted the so-called "referendum" in March 2014.

This EP act strongly condemned the RF, whereas CTs' institutions and organizations are increasingly branded as "extremists" and prominent members of the CT community which are, or risk, being arrested as "terrorists," whereas the abuses against CTs include abduction, forced disappearance, violence, torture, and extrajudicial killings that the de facto authorities have failed to investigate and prosecute, as well as systemic legal problems over property rights and registration.

Resolution 2016/2692 (RSP) also reflected that CTs' leaders, including Mustafa Dzhemilev and Rafat Chubarov, have previously been banned from entering Crimea and are now allowed to do so but under threat of arrest—thus sharing the same fate as numerous other members of the Mejlis and CTs' activists and displaced people, whereas more than 20,000 CTs' have had to leave occupied Crimea and move to mainland Ukraine.

By Arts. 6 and 9 of Resolution 2016/2692 (RSP), EP condemned the severe restrictions on the freedoms of expression, association, and peaceful assembly, including at traditional commemorative events such as the anniversary of the deportation of the CTs by Stalin's totalitarian Soviet regime and at cultural gatherings of the CTs; it recalled that Indigenous CTP have suffered historic injustices which led to their massive deportation by the Soviet authorities and to the dispossession of their lands and resources; regrets are the fact that discriminatory policies applied by the so-called authorities are preventing the return of these properties and resources or are being used as an instrument to buy support.

Also the Resolution of EP 2017/2596 (RSP) of March 16, 2017, on the Ukrainian prisoners in the RF and the Crimean situation should be mentioned. In its Art. 8, there underlines that the CTs, as an IP of the peninsula, and their cultural heritage seem to be prime targets for repressions: calls for unrestricted access to Crimea by international institutions and independent experts from the OSCE, the UN and the Council of Europe. In its Art. 9, the resolution reminds the Russian authorities that

**171**

enous representatives [35].

*Legal Statute and Perspectives for Indigenous Peoples in Ukraine*

citizens from arbitrary judicial or administrative measures.

despite the illegality of the annexation of Crimea, the RF is, in a de facto capacity, fully responsible for upholding the legal order in Crimea and protecting Crimean

This document pointed that restrictive Russian legislation regulating political and civil rights has been extended to Crimea, which has resulted in the freedoms of assembly, expression, association, access to information, and religion being drastically curtailed, as well as credible reports of intimidation, enforced disappearances, and torture, whereas there are approximately 20,000 internally displaced persons from Crimea in other Ukrainian regions, the Mejlis of the CTP has been banned and

By Art. 10 the resolution of EP expresses strong concern over the many credible reports of cases of disappearances, torture, and systematic intimidation of local citizens opposed to the annexation of Crimea and calls on Russia to immediately cease the practices of persecution, to effectively investigate all cases of HRs' violations, including enforced disappearances, arbitrary detentions, torture and ill-treatment of detainees, and to respect the fundamental freedoms of all residents, including the freedoms of expression, religion or belief, and association and the right to peaceful assembly; calls for all disappearances and kidnappings during the period of occupation of Crimea are to be investigated immediately, including the case of Ervin Ibragimov. In its Art. 18 EP calls for the EU support for Ukrainian and CTs' media projects for Crimea as well as those initiated by the European Endowment for Democracy and Radio-Free Europe/Radio Liberty and in defense of

CTs' schools and other initiatives to protect their cultural heritage [32].

EP also voted the resolution of October 5, 2017, on the cases of CTs' leaders Akhtem Chiygoz and Ilmi Umerov and the journalist Mykola Semena (2017/2869 (RSP)) [33]. In Arts. 3 and 4 of this act, the EP condemned the Russian authorities' actions in Crimea that discriminate "the Indigenous CTs," as such actions cause the infringement of CTs' property rights, also as they increase pressure over CTP in their economic, social, and political life opposing the Russian attempt of annexation of the Crimea. By this resolution EP confirmed once again that CTs' rights were gravely and brutally limited and violated after the ban of the Mejlis activities and determining this body as "extremist" "civil organization," also as after the ban for

Also the issues of violation of CTs' rights were reflected in the OSCE documents. Report of the HRs' assessment mission on Crimea, prepared by OSCE ODIHR and the OSCE HCNM in 2015 in point 178 confirmed that Russian powers in occupied Crimea limited the movement of CTs' leaders, established for them the entry bans and other nonproportional measures to prevent their travels to Ukrainian mainland and abroad. Such limitations were clearly politicized as the persons banned to enter Crimea were originating from Crimea and regarding to the RF laws adopted after

The current HRs' situation in Crimea and the challenges faced by HRs' defenders working on and in Crimea were discussed at an expert meeting on June 14, 2018, in Kherson, Ukraine. The meeting was organized by the OSCE ODIHR in cooperation with the Mission of the President of Ukraine in the ARC. This meeting was held with 28 representatives of various civil structures, such as leading HRs' defense Crimean structures, the Mission of the President, and intergovernmental organizations. Those representatives discussed and researched the situation with HRs in peninsula, regarding to the proposals of the abovementioned report of the HRs' assessment mission, done in 2015. This will further the efforts of this mission to promote and monitor the observance of the HRs of Ukrainian citizens living in Crimea and of internally displaced persons from the peninsula, including indig-

*DOI: http://dx.doi.org/10.5772/intechopen.85560*

proclaimed an extremist organization.

the CTs' leaders to return to Crimea.

2014 theoretically were the "Russian citizens" [34].

#### *Legal Statute and Perspectives for Indigenous Peoples in Ukraine DOI: http://dx.doi.org/10.5772/intechopen.85560*

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

belief and association and the right to peaceful assembly.

to Crimea and their prosecution were deplored [31].

and boycotted the so-called "referendum" in March 2014.

as well as systemic legal problems over property rights and registration.

and resources or are being used as an instrument to buy support.

cratic processes, economic opportunities, and objective information.

intimidation, violence, including sexual violence, arbitrary detentions, torture and ill-treatment, in particular to extract confessions, and psychiatric internment and their transfer or deportation from Crimea to the RF, as well as reported abuses of other fundamental freedoms, including the freedoms of expression, religion, or

In this act the UNGA demanded the RF to reduce all the decisions that banned the Mejlis of the CTP and its activities as the "extremist organization," to cancel the acts banning the Mejlis' leaders to enter Crimea and to stop any other steps for limitations on the rights and possibilities of the CTP to establish and preserve own representative structures. Also in Resolution 72/190, the UNGA supported the efforts of Ukraine to maintain economic, financial, political, social, informational, cultural, and other ties with its citizens in the occupied Crimea in order to facilitate their access to demo-

Some acts of the EP as of the European Union politic representative body also reflect the situation with internal displacement of the indigenous CTs and violation of their individual and collective rights in Crimea that caused such displacement. In Art. 9 of the EP resolution of February 4, 2016, on the HRs' situation in Crimea, in particular of the CTs (2016/2556 (RSP)), the impediments to CTP leaders returning

The resolution of EP 2016/2692 (RSP) on the CTs [19] reflected the concern of the European Union and the international community regarding the current problems for HRs in the occupied peninsula. This act pointed on the pressure over those who did not confirm the "legacy" of the Russian authorities in Crimea; it specially stressed that such so-called powers "targeted the indigenous community" of the CTs, as the majority of the CTP opposed the RF to take control over the peninsula

This EP act strongly condemned the RF, whereas CTs' institutions and organizations are increasingly branded as "extremists" and prominent members of the CT community which are, or risk, being arrested as "terrorists," whereas the abuses against CTs include abduction, forced disappearance, violence, torture, and extrajudicial killings that the de facto authorities have failed to investigate and prosecute,

Resolution 2016/2692 (RSP) also reflected that CTs' leaders, including Mustafa Dzhemilev and Rafat Chubarov, have previously been banned from entering Crimea and are now allowed to do so but under threat of arrest—thus sharing the same fate as numerous other members of the Mejlis and CTs' activists and displaced people, whereas more than 20,000 CTs' have had to leave occupied Crimea and move to

By Arts. 6 and 9 of Resolution 2016/2692 (RSP), EP condemned the severe restrictions on the freedoms of expression, association, and peaceful assembly, including at traditional commemorative events such as the anniversary of the deportation of the CTs by Stalin's totalitarian Soviet regime and at cultural gatherings of the CTs; it recalled that Indigenous CTP have suffered historic injustices which led to their massive deportation by the Soviet authorities and to the dispossession of their lands and resources; regrets are the fact that discriminatory policies applied by the so-called authorities are preventing the return of these properties

Also the Resolution of EP 2017/2596 (RSP) of March 16, 2017, on the Ukrainian prisoners in the RF and the Crimean situation should be mentioned. In its Art. 8, there underlines that the CTs, as an IP of the peninsula, and their cultural heritage seem to be prime targets for repressions: calls for unrestricted access to Crimea by international institutions and independent experts from the OSCE, the UN and the Council of Europe. In its Art. 9, the resolution reminds the Russian authorities that

**170**

mainland Ukraine.

despite the illegality of the annexation of Crimea, the RF is, in a de facto capacity, fully responsible for upholding the legal order in Crimea and protecting Crimean citizens from arbitrary judicial or administrative measures.

This document pointed that restrictive Russian legislation regulating political and civil rights has been extended to Crimea, which has resulted in the freedoms of assembly, expression, association, access to information, and religion being drastically curtailed, as well as credible reports of intimidation, enforced disappearances, and torture, whereas there are approximately 20,000 internally displaced persons from Crimea in other Ukrainian regions, the Mejlis of the CTP has been banned and proclaimed an extremist organization.

By Art. 10 the resolution of EP expresses strong concern over the many credible reports of cases of disappearances, torture, and systematic intimidation of local citizens opposed to the annexation of Crimea and calls on Russia to immediately cease the practices of persecution, to effectively investigate all cases of HRs' violations, including enforced disappearances, arbitrary detentions, torture and ill-treatment of detainees, and to respect the fundamental freedoms of all residents, including the freedoms of expression, religion or belief, and association and the right to peaceful assembly; calls for all disappearances and kidnappings during the period of occupation of Crimea are to be investigated immediately, including the case of Ervin Ibragimov. In its Art. 18 EP calls for the EU support for Ukrainian and CTs' media projects for Crimea as well as those initiated by the European Endowment for Democracy and Radio-Free Europe/Radio Liberty and in defense of CTs' schools and other initiatives to protect their cultural heritage [32].

EP also voted the resolution of October 5, 2017, on the cases of CTs' leaders Akhtem Chiygoz and Ilmi Umerov and the journalist Mykola Semena (2017/2869 (RSP)) [33]. In Arts. 3 and 4 of this act, the EP condemned the Russian authorities' actions in Crimea that discriminate "the Indigenous CTs," as such actions cause the infringement of CTs' property rights, also as they increase pressure over CTP in their economic, social, and political life opposing the Russian attempt of annexation of the Crimea. By this resolution EP confirmed once again that CTs' rights were gravely and brutally limited and violated after the ban of the Mejlis activities and determining this body as "extremist" "civil organization," also as after the ban for the CTs' leaders to return to Crimea.

Also the issues of violation of CTs' rights were reflected in the OSCE documents. Report of the HRs' assessment mission on Crimea, prepared by OSCE ODIHR and the OSCE HCNM in 2015 in point 178 confirmed that Russian powers in occupied Crimea limited the movement of CTs' leaders, established for them the entry bans and other nonproportional measures to prevent their travels to Ukrainian mainland and abroad. Such limitations were clearly politicized as the persons banned to enter Crimea were originating from Crimea and regarding to the RF laws adopted after 2014 theoretically were the "Russian citizens" [34].

The current HRs' situation in Crimea and the challenges faced by HRs' defenders working on and in Crimea were discussed at an expert meeting on June 14, 2018, in Kherson, Ukraine. The meeting was organized by the OSCE ODIHR in cooperation with the Mission of the President of Ukraine in the ARC. This meeting was held with 28 representatives of various civil structures, such as leading HRs' defense Crimean structures, the Mission of the President, and intergovernmental organizations. Those representatives discussed and researched the situation with HRs in peninsula, regarding to the proposals of the abovementioned report of the HRs' assessment mission, done in 2015. This will further the efforts of this mission to promote and monitor the observance of the HRs of Ukrainian citizens living in Crimea and of internally displaced persons from the peninsula, including indigenous representatives [35].

The ban of Mejlis of the CTP was watched by the International Court of Justice (ICJ) in Ukrainian claim against the RF for the UN Convention on the Elimination of All Forms of Racial Discrimination (CERD). In this case ICJ established the special measures and demanded by its Order the RF "to refrain from maintaining or imposing limitations on the ability of the CTs community to conserve its representative institutions, including the Mejlis of the CTP." This Order was added to the preliminary decision of the ICJ handed down on April 19, 2017, acknowledging its own jurisdiction over the Ukraine vs. Russia case.

As judge of the ICJ James Crawford pointed related to this case, nothing in CERD prevents any state from national regulating the issues of establishment or development of the organizations representing any ethnic group. The states also have competence even to ban such organization in the most serious situations, but of course such measures or bans must be clearly and transparently justified. In the case Ukraine vs. Russia, those justifications are absolutely necessary regarding the historical destiny of the CTP and the essential role of the Mejlis in preserving, advancing, and protecting the CTs' rights, especially during the period of changes and disruption. So the ICJ will be able to assess the evidences from the parties of this case in that regard, pointed by this judge.

More, judge J. Crawford added in his declaration for this case that the provisional measures established by the ICJ regarding to the Mejlis issue require that Russia must refrain from maintaining that ban. At the same time, this ICJ Order did not point the aspects the volume and framework of the decisions of the Crimean bodies and SCRF regarding the provisions of the Russian law executed for. So the Order of ICJ confirmed that this ban may plausibly implicate rights under international law and of course it may not be in compliance with the domestic courts' acts [36].

More, in September 2017, some Mejlis members' representatives lodged the application to the "Supreme Court of the RC" demanding to execute the ICJ Order by making the review of Russia's ban. Some coherent individual suits were lodged soon after the Crimean "prosecutor" informed the Mejlis first deputy head, Nariman Dzhelyal, that the "prosecutors' office" seeks the "clarification" for this ban regarding the ICJ's Order. There had also been a separate application lodged by Russian lawyer Nikolai Polozov on July 18, 2017, to this issue [29]. The "Supreme Court of the RC" rejected all those application by the formal grounds. During the 2017 Mejlis of the CTP, local Mejlises of CTs and some members of Mejlis and Qurultay bodies lodged their individual application to the European Court on HRs against Russia for their rights, guaranteed by the European Convention on HRs and brutally violated by the illegal ban of Mejlis.

#### **3. Conclusions**

So we may point that since 2014, Crimean Tatars were recognized by Ukraine as Indigenous People de jure, and Crimean Karaites and Krymchaks were recognized by this state de facto. The Russian Federation, contrary to some declarations made during 2014–2015 after occupation of the Crimean peninsula, did not recognized any ethnic group of Crimea, as the Indigenous People de jure. Proceeding in the International Court of Justice in CERD case of the Ukraine vs. Russia, including demand to cancel the ban of Mejlis of Crimean Tatar People and position of the Supreme Court of Russia in Mejlis case, shows the absence of legal strategy in Russia related to Crimean Tatar issue. The Russian doctrine for traditional non-numerous Indigenous Peoples is not in compliance with Karaites and Krymchaks situation.

The key issues for reparations and reconciliation for Indigenous Peoples of Ukraine are connected with consequences of:

**173**

*Legal Statute and Perspectives for Indigenous Peoples in Ukraine*

• The genocide started against them during World War II, including the deportation of the Crimean Tatar people (1944–1989), duty of coherent investigations,

• The internal displacement of representatives of Indigenous Peoples from occupied Crimea to other regions of Ukraine since 2014 that cause the duty to

• The ban by the Russian authorities of the Mejlis of the Crimean Tatar People since 2016, coherent proceedings started in Russian jurisdiction, in the European Court on Human Rights, and in the International Court of Justice.

• The discrimination of the Indigenous Peoples in the occupied Crimea since 2014 by Russian de facto authorities is often not in compliance with the Geneva

Those aspects were reflected not in Ukrainian and Russian normative acts but in some resolutions of the UN General Assembly and European Parliament devoted to situation in Crimea. The paradox of reflecting the UN Indigenous standards for Crimea more in acts of European Union than of the UN structures is an interesting

This work was done with a great support of some institutions, including the Indigenous NGO such as the Foundation of Research and Support of Indigenous Peoples of Crimea and Crimean Tatar Resource Center, with which I collaborated for the last decade. The results of my works for Indigenous Issues were kindly presented in Ukrainian parliamentary institutions such as Committee for Foreign Affairs and Legislation Institute. My research grounded on submissions, I prepared and presented for the UN Expert Mechanism of the Rights of Indigenous Peoples for Report on Recognition, Reparations, and Reconciliation and study on the Indigenous Peoples' Rights in the Context of Borders, Migration, and Displacement in 2019.

I, Borys Babin, confirm, declare, and certify that I have no any real possible affiliations relevant to any structure, entity, or organization with any financial or other material interest, including the consultancies, educational grants, employment, honoraria, membership, participation in speakers' bureaus, stock ownership, other equity interest, and/or the expert testimony or patent-licensing arrangements; also I have no any relevant, real or potential, nonfinancial interest, such as affiliations, beliefs, knowledge, personal, or professional relationships in the subject matter or materials reflected, discussed, and concluded in this work.

provide the wide set of displaced Indigenous persons' rights.

Law and international standards of human rights.

phenomena for future scientific researches.

**Acknowledgements**

**Conflict of interest**

*DOI: http://dx.doi.org/10.5772/intechopen.85560*

court decisions, and compensations.

*Legal Statute and Perspectives for Indigenous Peoples in Ukraine DOI: http://dx.doi.org/10.5772/intechopen.85560*


Those aspects were reflected not in Ukrainian and Russian normative acts but in some resolutions of the UN General Assembly and European Parliament devoted to situation in Crimea. The paradox of reflecting the UN Indigenous standards for Crimea more in acts of European Union than of the UN structures is an interesting phenomena for future scientific researches.

#### **Acknowledgements**

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

own jurisdiction over the Ukraine vs. Russia case.

this case in that regard, pointed by this judge.

brutally violated by the illegal ban of Mejlis.

Ukraine are connected with consequences of:

**3. Conclusions**

The ban of Mejlis of the CTP was watched by the International Court of Justice (ICJ) in Ukrainian claim against the RF for the UN Convention on the Elimination of All Forms of Racial Discrimination (CERD). In this case ICJ established the special measures and demanded by its Order the RF "to refrain from maintaining or imposing limitations on the ability of the CTs community to conserve its representative institutions, including the Mejlis of the CTP." This Order was added to the preliminary decision of the ICJ handed down on April 19, 2017, acknowledging its

As judge of the ICJ James Crawford pointed related to this case, nothing in CERD prevents any state from national regulating the issues of establishment or development of the organizations representing any ethnic group. The states also have competence even to ban such organization in the most serious situations, but of course such measures or bans must be clearly and transparently justified. In the case Ukraine vs. Russia, those justifications are absolutely necessary regarding the historical destiny of the CTP and the essential role of the Mejlis in preserving, advancing, and protecting the CTs' rights, especially during the period of changes and disruption. So the ICJ will be able to assess the evidences from the parties of

More, judge J. Crawford added in his declaration for this case that the provisional

So we may point that since 2014, Crimean Tatars were recognized by Ukraine as Indigenous People de jure, and Crimean Karaites and Krymchaks were recognized by this state de facto. The Russian Federation, contrary to some declarations made during 2014–2015 after occupation of the Crimean peninsula, did not recognized any ethnic group of Crimea, as the Indigenous People de jure. Proceeding in the International Court of Justice in CERD case of the Ukraine vs. Russia, including demand to cancel the ban of Mejlis of Crimean Tatar People and position of the Supreme Court of Russia in Mejlis case, shows the absence of legal strategy in Russia related to Crimean Tatar issue. The Russian doctrine for traditional non-numerous Indigenous Peoples is not in compliance with Karaites and Krymchaks situation. The key issues for reparations and reconciliation for Indigenous Peoples of

measures established by the ICJ regarding to the Mejlis issue require that Russia must refrain from maintaining that ban. At the same time, this ICJ Order did not point the aspects the volume and framework of the decisions of the Crimean bodies and SCRF regarding the provisions of the Russian law executed for. So the Order of ICJ confirmed that this ban may plausibly implicate rights under international law and of course it may not be in compliance with the domestic courts' acts [36]. More, in September 2017, some Mejlis members' representatives lodged the application to the "Supreme Court of the RC" demanding to execute the ICJ Order by making the review of Russia's ban. Some coherent individual suits were lodged soon after the Crimean "prosecutor" informed the Mejlis first deputy head, Nariman Dzhelyal, that the "prosecutors' office" seeks the "clarification" for this ban regarding the ICJ's Order. There had also been a separate application lodged by Russian lawyer Nikolai Polozov on July 18, 2017, to this issue [29]. The "Supreme Court of the RC" rejected all those application by the formal grounds. During the 2017 Mejlis of the CTP, local Mejlises of CTs and some members of Mejlis and Qurultay bodies lodged their individual application to the European Court on HRs against Russia for their rights, guaranteed by the European Convention on HRs and

**172**

This work was done with a great support of some institutions, including the Indigenous NGO such as the Foundation of Research and Support of Indigenous Peoples of Crimea and Crimean Tatar Resource Center, with which I collaborated for the last decade. The results of my works for Indigenous Issues were kindly presented in Ukrainian parliamentary institutions such as Committee for Foreign Affairs and Legislation Institute. My research grounded on submissions, I prepared and presented for the UN Expert Mechanism of the Rights of Indigenous Peoples for Report on Recognition, Reparations, and Reconciliation and study on the Indigenous Peoples' Rights in the Context of Borders, Migration, and Displacement in 2019.

#### **Conflict of interest**

I, Borys Babin, confirm, declare, and certify that I have no any real possible affiliations relevant to any structure, entity, or organization with any financial or other material interest, including the consultancies, educational grants, employment, honoraria, membership, participation in speakers' bureaus, stock ownership, other equity interest, and/or the expert testimony or patent-licensing arrangements; also I have no any relevant, real or potential, nonfinancial interest, such as affiliations, beliefs, knowledge, personal, or professional relationships in the subject matter or materials reflected, discussed, and concluded in this work.

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

#### **Author details**

Borys Babin1 \*, Olena Grinenko1 and Anna Prykhodko2

1 Legislation Institute of the Verkhovna Rada of Ukraine, Odesa, Ukraine

2 Sumy National Agrarian University, Sumy, Ukraine

\*Address all correspondence to: babinb@ukr.net

© 2019 The Author(s). Licensee IntechOpen. This chapter is distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/ by/3.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.

**175**

show/1732-2004-п

*Legal Statute and Perspectives for Indigenous Peoples in Ukraine*

Historic-Cultural Heritage of Crimean Karaites and Krymchaks for 2012. No 582-6/11, 2011 [on Ukrainian] [Internet]. 2019. Available from: http:// search.ligazakon.ua/l\_doc2.nsf/link1/

[9] Statement of Verkhovna Rada of Ukraine on the Guarantee of the Rights of the Crimean Tatar People in the Ukrainian State, approved by the Resolution of Verkhovna Rada of Ukraine. No. 1140-VII, 2014 [in Ukrainian] [Internet]. 2019. Available from: http://zakon2.rada.gov.ua/laws/

[10] Decree of the President of the Russian Federation. On the Measures for the Rehabilitation of the Armenian, Bulgarian, Greek, Crimean Tatar and German Peoples and the State Support of their Revival and Development. No. 268, 2014 [in Russian] [Internet]. 2019. Available from: http:// www.rg.ru/2014/04/21/reabilitaciya-site-

[11] Resolution. On the Law of the Republic of Crimea "On Guarantees of the Rights of Peoples Deported without Court Order on a National Basis in 1941- 1944 from the Crimean Autonomous Soviet Socialist Republic". No. 2203- 6/14, 2014 [in Russian] [Internet]. 2019. Available from: http://www.rada.

[12] Prescript of Government of Russia. On Disposing the Submission to the Government of Russian Federation. On Including the Crimean Karaites and Krymchaks to the Common List of the non-numerous indigenous peoples of Russian Federation, 2014 [in Russian] [Internet]. 2019. Available from: http://regulation.gov. ru/project/17036.html?point=view\_ project&stage=1&stage\_id=6158

[13] Semushin D. Who and Why Flurries the «Problem» of Karaies

crimea.ua/ua/app/3449

KM110439.html

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*DOI: http://dx.doi.org/10.5772/intechopen.85560*

[1] Babin B. International legal grounds for access to justice for indigenous peoples in Crimea. NB: International Law. 2014;**3**:1-31. DOI: 10.7256/2306-9899.2014.3.12550

[2] Babin B. Legal Statute of the Indigenous Peoples of Ukraine. Donetzk: Kashtan; 2006. 231 p [on

[3] Prykhodko A, Babin B. Crimean Karaites and Krymchaks as indigenous peoples of Crimea in the modern conditions. Global Journal of

Anthropology Research. 2017;**4**(1):8-16. DOI: 10.15379/2410-2806.2017.04.01.02

[5] Law of Ukraine. On Grounds of State Linguistic Policy. No. 5029-VI, 2012 [on Ukrainian] [Internet]. 2019. Available from: http://zakon3.rada.gov.ua/laws/

[6] Disposal of Cabinet of Ministers of Ukraine. On Approval of Measures For Acceleration of Social-Economic Development of Autonomous Republic of Crimea. No. 187-p, 2001 [on Ukrainian] [Internet]. 2019. Available from: http:// zakon0.rada.gov.ua/laws/show/187-2001-р

[7] Prescript of Cabinet of Ministers of Ukraine. On Approval of State Program of Defense and Preservation The Non-Material Cultural Heritage for 2004-2008. No. 1732, 2004 [on Ukrainian] [Internet]. 2019. Available from: http://zakon5.rada.gov.ua/laws/

[8] Prescript of Supreme Council. On Measures for Preservation of

[4] Statement of Indigenous Peoples attending the 13th Session of Permanent Forum on Indigenous Issues. About Urgent Situation of Indigenous Peoples of Crimea, 2014 [Internet]. 2019. Available from: http://www.un.org/ News/Press/docs/2014/hr5179.doc.htm

**References**

Ukrainian]

show/5029-17

*Legal Statute and Perspectives for Indigenous Peoples in Ukraine DOI: http://dx.doi.org/10.5772/intechopen.85560*

#### **References**

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

© 2019 The Author(s). Licensee IntechOpen. This chapter is distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/ by/3.0), which permits unrestricted use, distribution, and reproduction in any medium,

and Anna Prykhodko2

1 Legislation Institute of the Verkhovna Rada of Ukraine, Odesa, Ukraine

**174**

**Author details**

Borys Babin1

provided the original work is properly cited.

\*, Olena Grinenko1

2 Sumy National Agrarian University, Sumy, Ukraine

\*Address all correspondence to: babinb@ukr.net

[1] Babin B. International legal grounds for access to justice for indigenous peoples in Crimea. NB: International Law. 2014;**3**:1-31. DOI: 10.7256/2306-9899.2014.3.12550

[2] Babin B. Legal Statute of the Indigenous Peoples of Ukraine. Donetzk: Kashtan; 2006. 231 p [on Ukrainian]

[3] Prykhodko A, Babin B. Crimean Karaites and Krymchaks as indigenous peoples of Crimea in the modern conditions. Global Journal of Anthropology Research. 2017;**4**(1):8-16. DOI: 10.15379/2410-2806.2017.04.01.02

[4] Statement of Indigenous Peoples attending the 13th Session of Permanent Forum on Indigenous Issues. About Urgent Situation of Indigenous Peoples of Crimea, 2014 [Internet]. 2019. Available from: http://www.un.org/ News/Press/docs/2014/hr5179.doc.htm

[5] Law of Ukraine. On Grounds of State Linguistic Policy. No. 5029-VI, 2012 [on Ukrainian] [Internet]. 2019. Available from: http://zakon3.rada.gov.ua/laws/ show/5029-17

[6] Disposal of Cabinet of Ministers of Ukraine. On Approval of Measures For Acceleration of Social-Economic Development of Autonomous Republic of Crimea. No. 187-p, 2001 [on Ukrainian] [Internet]. 2019. Available from: http:// zakon0.rada.gov.ua/laws/show/187-2001-р

[7] Prescript of Cabinet of Ministers of Ukraine. On Approval of State Program of Defense and Preservation The Non-Material Cultural Heritage for 2004-2008. No. 1732, 2004 [on Ukrainian] [Internet]. 2019. Available from: http://zakon5.rada.gov.ua/laws/ show/1732-2004-п

[8] Prescript of Supreme Council. On Measures for Preservation of

Historic-Cultural Heritage of Crimean Karaites and Krymchaks for 2012. No 582-6/11, 2011 [on Ukrainian] [Internet]. 2019. Available from: http:// search.ligazakon.ua/l\_doc2.nsf/link1/ KM110439.html

[9] Statement of Verkhovna Rada of Ukraine on the Guarantee of the Rights of the Crimean Tatar People in the Ukrainian State, approved by the Resolution of Verkhovna Rada of Ukraine. No. 1140-VII, 2014 [in Ukrainian] [Internet]. 2019. Available from: http://zakon2.rada.gov.ua/laws/ show/1140-vii

[10] Decree of the President of the Russian Federation. On the Measures for the Rehabilitation of the Armenian, Bulgarian, Greek, Crimean Tatar and German Peoples and the State Support of their Revival and Development. No. 268, 2014 [in Russian] [Internet]. 2019. Available from: http:// www.rg.ru/2014/04/21/reabilitaciya-sitedok.html

[11] Resolution. On the Law of the Republic of Crimea "On Guarantees of the Rights of Peoples Deported without Court Order on a National Basis in 1941- 1944 from the Crimean Autonomous Soviet Socialist Republic". No. 2203- 6/14, 2014 [in Russian] [Internet]. 2019. Available from: http://www.rada. crimea.ua/ua/app/3449

[12] Prescript of Government of Russia. On Disposing the Submission to the Government of Russian Federation. On Including the Crimean Karaites and Krymchaks to the Common List of the non-numerous indigenous peoples of Russian Federation, 2014 [in Russian] [Internet]. 2019. Available from: http://regulation.gov. ru/project/17036.html?point=view\_ project&stage=1&stage\_id=6158

[13] Semushin D. Who and Why Flurries the «Problem» of Karaies and Krymchaks in Russian Crimea [in Russian] [Internet]. 2019. Available from: https://eadaily.com/ ru/news/2019/02/07/kto-i-zachembudorazhit-problemu-karaimov-ikrymchakov-v-rossiyskom-krymu

[14] Draft of Prescript of Verkhovna Rada of Ukraine. On Declaration of Verkhovna Rada of Ukraine for Preservation in Ukraine the Originality and Cultural Heritage of Crimean Karaites (Karays) and Krymchaks 2015 [in Ukrainian] [Internet]. 2019. Available from: http://w1.c1.rada.gov. ua/pls/zweb2/webproc4\_2?id=&pf3516 =2680&skl=9

[15] Topalova E, Borys B, Prykhodko A. Legislative Defense of the Rights of Indigenous Peoples of Ukraine. OSCE Human Dimension Implementation Meeting 2016. HDIM.NGO/0036/16/ FR [in French] [Internet]. 2019. Available from: http://www.osce.org/ru/ odihr/266981?download=true

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[17] Office of the UN High Commissioner for Human Rights. Reports on the Human Rights Situation in Ukraine [Internet]. 2019. Available from: https://www.ohchr.org/en/countries/ enacaregion/pages/uareports.aspx

[18] Babin B. Rights and dignity of indigenous peoples of Ukraine in revolutionary conditions and foreign occupation. Evolution of the statute of the indigenous peoples of Ukraine, as legal grounding for Crimea. Anthropology & Archeology of Eurasia. 2014;**55**(3):81-115. DOI: 10.1080/10611959.2014.1024080

[19] European Parliament Resolution of 12 May 2016 on the Crimean Tatars (2016/2692(RSP)) [Internet]. 2019.

Available from: http://www.europarl. europa.eu/sides/getDoc.do?type= TA&language=EN&reference=P8-TA-2016-0218

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[21] Project of Law of Ukraine. On the Restoration the Rights of Persons, Deported on National Grounds. No. 1872-IV, 2004 [in Ukrianian] [Internet]. 2019. Available from: http://w1.c1.rada. gov.ua/pls/zweb2/webproc34?id=&pf35 11=16774&pf35401=54913

[22] Law of Ukraine. On the Providing the Rights and Freedoms of Citizens and Legal Regime for the Temporarily Occupied Territory of Ukraine. No. 1207-VII, 2014 [in Ukrianian] [Internet]. 2019. Available from: http:// zakon2.rada.gov.ua/laws/show/1207-18

[23] Project of Law of Ukraine. On the Rights of Indigenous Peoples of Ukraine. 4501, 2014 [in Ukrianian] [Internet]. 2019. Available from: http://w1.c1.rada.gov.ua/pls/zweb2/ webproc4\_1?pf3511=50327

[24] Law of Ukraine. On the Restoration the Rights of Persons, Deported on National Grounds. No. 1223-VII, 2014 [in Ukrianian] [Internet]. 2019. Available from: http://zakon4.rada.gov. ua/laws/show/1223-18

[25] Pleshko E, Babin B. Legal qualification of the deportation of the Crimean Tatar people as an international crime. The European Political and Law Discourse. 2016;**3**(3):7-17

[26] Pleshko E, Topalova E, Prykhodko A, Babin B. Deportation of the Indigenous Crimean Tatar People as the Continuous International Crime

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*Legal Statute and Perspectives for Indigenous Peoples in Ukraine*

[33] European Parliament resolution on the cases of Crimean Tatar leaders Akhtem Chiygoz, Ilmi Umerov and the journalist Mykola Semena (5 October 2017 2017/2869(RSP)) [Internet]. 2019. Available from: http://www. europarl.europa.eu/sides/getDoc. do?pubRef=-//EP//TEXT+TA+P8- TA-2017-0382+0+DOC+XML+V0//

[34] Office for Democratic Institutions

Commissioner on National Minorities. Report of the Human Rights Assessment Mission on Crimea, 2015 [Internet]. 2019. Available from: https://www. osce.org/odihr/report-of-the-humanrights-assessment-mission-on-

[35] Human Rights Situation in Crimea Focus of OSCE/ODIHR Expert Meeting in Kherson. OSCE [Internet]. 2019. Available from: https://www.osce.org/

[36] Declaration of Judge Crawford. Plausibility of claimed rights under CERD. Banning of Mejlis. Role of Mejlis in light of modern history of the Crimean Tatars. Meaning of racial discrimination [Internet]. 2019. Available from: https://icj-cij.org/files/

case-related/166/19404.pdf

EN&language=EN

and Human Rights & High

crimea?download=true

odihr/384483

*DOI: http://dx.doi.org/10.5772/intechopen.85560*

That Has no Limitation Period. OSCE Human Dimension Implementation Meeting 2016. HDIM.NGO/0035/16/EN [Internet]. 2019. Available from: http://

[27] Grant P, editor. State of the World's Minorities and Indigenous Peoples 2016. Events of 2015. London: Minority Rights Group International; 2016. 222 p. ISBN

[28] Coynash H. Russia flouts Hague Court order to reinstate the Crimean Tatar Mejlis and education in Ukrainian in occupied Crimea. Human Rights in Ukraine [Internet]. 2019. Available from: http://khpg.org/en/index.

[29] UN General Assembly Resolution 71/205. Situation of human rights in the Autonomous Republic of Crimea and the city of Sevastopol (Ukraine) [Internet]. 2019. Available from: https:// mfa.gov.ua/mediafiles/sites/vienna/

[30] UN General Assembly Resolution 72/190. Situation of human rights in the Autonomous Republic of Crimea and the city of Sevastopol, Ukraine [Internet]. 2019. Available from: http:// www.un.org/en/ga/search/view\_doc.

[31] European Parliament resolution on the human rights situation in Crimea, in particular of the Crimean Tatars (4 February 2016 2016/2556(RSP)) [Internet]. 2019. Available from: http:// www.europarl.europa.eu/sides/getDoc. do?type=TA&language=EN&reference

prisoners in Russia and the situation in Crimea (16 March 2017 2017/2596(RSP)) [Internet]. 2019. Available from: http:// www.europarl.europa.eu/sides/getDoc. do?pubRef=-//EP//TEXT+TA+P8- TA-2017-0087+0+DOC+XML+V0//EN

asp?symbol=A/RES/72/190

=P8-TA-2016-0043

[32] European Parliament resolution on the Ukrainian

www.osce.org/odihr/266736

978-1-907919-80-0

php?id=1524091822

files/N1645574.pdf

*Legal Statute and Perspectives for Indigenous Peoples in Ukraine DOI: http://dx.doi.org/10.5772/intechopen.85560*

That Has no Limitation Period. OSCE Human Dimension Implementation Meeting 2016. HDIM.NGO/0035/16/EN [Internet]. 2019. Available from: http:// www.osce.org/odihr/266736

*Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe*

Available from: http://www.europarl. europa.eu/sides/getDoc.do?type= TA&language=EN&reference=P8-TA-

[20] Agreement on Issues Related to the Restoration of the Rights of Deported Rersons, Ethnic Minorities and Peoples, 1992. Bishkek [in

Ukrianian] [Internet]. 2019. Available from: http://zakon4.rada.gov.ua/laws/

[21] Project of Law of Ukraine. On the Restoration the Rights of Persons, Deported on National Grounds. No. 1872-IV, 2004 [in Ukrianian] [Internet]. 2019. Available from: http://w1.c1.rada. gov.ua/pls/zweb2/webproc34?id=&pf35

[22] Law of Ukraine. On the Providing the Rights and Freedoms of Citizens and Legal Regime for the Temporarily Occupied Territory of Ukraine. No. 1207-VII, 2014 [in Ukrianian] [Internet]. 2019. Available from: http:// zakon2.rada.gov.ua/laws/show/1207-18

[23] Project of Law of Ukraine. On the Rights of Indigenous Peoples of Ukraine. 4501, 2014 [in Ukrianian] [Internet]. 2019. Available from: http://w1.c1.rada.gov.ua/pls/zweb2/

[24] Law of Ukraine. On the Restoration the Rights of Persons, Deported on National Grounds. No. 1223-VII, 2014 [in Ukrianian] [Internet]. 2019. Available from: http://zakon4.rada.gov.

webproc4\_1?pf3511=50327

ua/laws/show/1223-18

[25] Pleshko E, Babin B. Legal

Discourse. 2016;**3**(3):7-17

qualification of the deportation of the Crimean Tatar people as an international crime. The European Political and Law

[26] Pleshko E, Topalova E, Prykhodko

A, Babin B. Deportation of the Indigenous Crimean Tatar People as the Continuous International Crime

11=16774&pf35401=54913

2016-0218

show/997\_090

and Krymchaks in Russian Crimea [in Russian] [Internet]. 2019. Available from: https://eadaily.com/ ru/news/2019/02/07/kto-i-zachembudorazhit-problemu-karaimov-ikrymchakov-v-rossiyskom-krymu

[14] Draft of Prescript of Verkhovna Rada of Ukraine. On Declaration of Verkhovna Rada of Ukraine for Preservation in Ukraine the Originality and Cultural Heritage of Crimean Karaites (Karays) and Krymchaks 2015 [in Ukrainian] [Internet]. 2019. Available from: http://w1.c1.rada.gov. ua/pls/zweb2/webproc4\_2?id=&pf3516

[15] Topalova E, Borys B, Prykhodko A. Legislative Defense of the Rights of Indigenous Peoples of Ukraine. OSCE Human Dimension Implementation Meeting 2016. HDIM.NGO/0036/16/ FR [in French] [Internet]. 2019.

Available from: http://www.osce.org/ru/

[16] UN General Assembly Resolution 68/262. Territorial Integrity of Ukraine [Internet]. 2019. Available from: http:// www.un.org/en/ga/search/view\_doc.

[17] Office of the UN High Commissioner for Human Rights. Reports on the Human Rights Situation in Ukraine [Internet]. 2019. Available from: https://www.ohchr.org/en/countries/ enacaregion/pages/uareports.aspx

odihr/266981?download=true

asp?symbol=A/RES/68/262

[18] Babin B. Rights and dignity of indigenous peoples of Ukraine in revolutionary conditions and foreign occupation. Evolution of the statute of the indigenous peoples of Ukraine, as legal grounding for Crimea. Anthropology & Archeology of Eurasia. 2014;**55**(3):81-115. DOI: 10.1080/10611959.2014.1024080

[19] European Parliament Resolution of 12 May 2016 on the Crimean Tatars (2016/2692(RSP)) [Internet]. 2019.

=2680&skl=9

**176**

[27] Grant P, editor. State of the World's Minorities and Indigenous Peoples 2016. Events of 2015. London: Minority Rights Group International; 2016. 222 p. ISBN 978-1-907919-80-0

[28] Coynash H. Russia flouts Hague Court order to reinstate the Crimean Tatar Mejlis and education in Ukrainian in occupied Crimea. Human Rights in Ukraine [Internet]. 2019. Available from: http://khpg.org/en/index. php?id=1524091822

[29] UN General Assembly Resolution 71/205. Situation of human rights in the Autonomous Republic of Crimea and the city of Sevastopol (Ukraine) [Internet]. 2019. Available from: https:// mfa.gov.ua/mediafiles/sites/vienna/ files/N1645574.pdf

[30] UN General Assembly Resolution 72/190. Situation of human rights in the Autonomous Republic of Crimea and the city of Sevastopol, Ukraine [Internet]. 2019. Available from: http:// www.un.org/en/ga/search/view\_doc. asp?symbol=A/RES/72/190

[31] European Parliament resolution on the human rights situation in Crimea, in particular of the Crimean Tatars (4 February 2016 2016/2556(RSP)) [Internet]. 2019. Available from: http:// www.europarl.europa.eu/sides/getDoc. do?type=TA&language=EN&reference =P8-TA-2016-0043

[32] European Parliament resolution on the Ukrainian prisoners in Russia and the situation in Crimea (16 March 2017 2017/2596(RSP)) [Internet]. 2019. Available from: http:// www.europarl.europa.eu/sides/getDoc. do?pubRef=-//EP//TEXT+TA+P8- TA-2017-0087+0+DOC+XML+V0//EN

[33] European Parliament resolution on the cases of Crimean Tatar leaders Akhtem Chiygoz, Ilmi Umerov and the journalist Mykola Semena (5 October 2017 2017/2869(RSP)) [Internet]. 2019. Available from: http://www. europarl.europa.eu/sides/getDoc. do?pubRef=-//EP//TEXT+TA+P8- TA-2017-0382+0+DOC+XML+V0// EN&language=EN

[34] Office for Democratic Institutions and Human Rights & High Commissioner on National Minorities. Report of the Human Rights Assessment Mission on Crimea, 2015 [Internet]. 2019. Available from: https://www. osce.org/odihr/report-of-the-humanrights-assessment-mission-oncrimea?download=true

[35] Human Rights Situation in Crimea Focus of OSCE/ODIHR Expert Meeting in Kherson. OSCE [Internet]. 2019. Available from: https://www.osce.org/ odihr/384483

[36] Declaration of Judge Crawford. Plausibility of claimed rights under CERD. Banning of Mejlis. Role of Mejlis in light of modern history of the Crimean Tatars. Meaning of racial discrimination [Internet]. 2019. Available from: https://icj-cij.org/files/ case-related/166/19404.pdf

*Edited by Liat Klain-Gabbay*

The book is a collection of papers about indigenous, aboriginal, ethnic and fugitive groups from different countries, regions and areas. The book's chapters are written by scholars from different disciplines who exemplify these groups' way of life, problems, etc. from educational aspects, governmental aspects, aspects of human rights, economic statues, legal statues etc. The chapters describe their difficulties, but also their will to preserve their culture and language, and make their life better.

Published in London, UK © 2019 IntechOpen © TatyanaMishchenko / iStock

Indigenous, Aboriginal, Fugitive and Ethnic Groups Around the Globe

Indigenous, Aboriginal,

Fugitive and Ethnic Groups

Around the Globe

*Edited by Liat Klain-Gabbay*