What is the right to self-determination?

While the right to self-determination remains undefined under international law, it can best be described as the right of a ‘people’ to collectively exercise control over, and make decisions regarding, matters that affect them. It is the right of a 'people' to determine their destiny.

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The right to self-determination is different to other traditional human rights. Most human rights are concerned with rights of individuals or ‘persons’ within a society. Self-determination is a collective right of ‘peoples’ under international law.

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No universal definition of ‘people’ exists under international law. The common features of ‘peoples’ include distinct communities composed of individuals with:

• common tradition and culture;
• ethnicity;
• historical ties and heritage;
• language;
• religion;
• sense of identity or kinship;
• the will to constitute a people;
• common suffering.

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Indigenous peoples were recognised as ‘peoples’ under international law by the United Nations General Assembly and bearers of the right to self-determination in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007.

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Why is the right to self-determination important to Aboriginal communities in Victoria?

The right to self-determination can serve as a means by which Aboriginal communities can restore Aboriginal authority over Aboriginal affairs through Aboriginal-determined institutions.

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Contemporary Victorian government practices treat Aboriginal people as minorities – a group or category of individuals making up a small portion of Victorian society and in a non-dominant position – that have suffered violations of human rights and dignity as a result of their status. Minority rights traditionally require the government to determine the means by which to protect the rights of minorities. While representatives of minority groups are allowed to participate in discussions concerning how issues affecting the group are addressed, there is no requirement for a government to reflect the opinions and decisions voiced by a minority group in legislation, policy or practice.

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As ‘peoples’, Victorian Aboriginal communities are legally entitled to more than a seat at the table.

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The right to self-determination of Aboriginal peoples in Victoria mandates that Aboriginal communities and their self-determined institutions:

• Actively participate in decision-making processes that affect them; and
• Possess the right to free, prior and informed consent over administrative and legislative measures that affect them.

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What are the current issues relating to the Aboriginal right to self-determination in the Victorian legal system?

There are many themes of Aboriginal self-determination that have emerged in advocacy by the Victorian Aboriginal Legal Service (VALS) and other organisations. For example, self-determination is key in addressing Aboriginal deaths in custody. In 1991, Recommendation 188 of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) stated that governments should negotiate with Aboriginal communities to determine guidelines, procedures and processes to be followed in the modification, design and implementation of policies and programs affecting Aboriginal communities. The Recommendation was premised upon self-determination. VALS and other organisations continue to advocate for this.

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If you want to find out more, feel free to contact your local Aboriginal Community Controlled Organisation. The ALO/AWO at your prison should have those contacts if you need them.