I READ with concern the AFP report, quoted by The Borneo Post on Sept 29, 2023.
It was about the proposal by the Brazilian government to introduce a law to restrict the rights of its indigenous people over their ancestral lands.
Any indigenous people who were not occupying their reservations in 1988 (timeframe) would lose their rights over such areas.
Although the Supreme Court of that country had ruled that the law would be ultra vires the constitution, yet the Senate had gone ahead with having that legislation.
Apparently, the government had succumbed to the pressure from the powerful agro-business lobby at the expense of its poor indigenous people.
To me, this policy of the government of Brazil or, for that matter, of any government, is a dangerous tool in the hands of the political elite in power at the bidding of the vested interests.
Why? Because the United Nations (UN) member countries would be free to ignore the UN Declaration on the Rights of the Indigenous Peoples (UNDRIP), despite the fact that this was the decision of the UN General Assembly itself. It was the Human Rights Council of that the UN Organisation, which had initiated that Declaration and which the General Assembly had approved in September 2007.
This move taken by Brazil, if used as a precedent by any other members of the UN, would create the situation in which there is one step forwards, two steps backwards!
The problem is that many politicians in power, especially those from the former colonies, have retained the colonial mentality of limiting or even dispossessing indigenous people of their traditional lands, territories and resources.
The Brazilian case indicates that in the UN itself, there is developing a culture that is eroding human rights of millions of indigenous peoples.
These people are ‘voiceless’ and ‘helpless’. It would be a very sad day and great disappointment indeed for them – they who have been relying on the UN to help them to:
• affirm that indigenous peoples are equal to all other peoples;
• reaffirm that indigenous peoples in their exercise of their rights should be free from discrimination of any kind;
• express concern that the indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonisation and dispossession of their lands, territories and resources, and;
• recognise the urgent need to respect and promote the rights of indigenous peoples affirmed in treaties agreement and other constructive arrangements with States.
Has your country acceded to UNDRIP?
Those of my readers who are curious enough to find out why all this fuss, should look at the list of countries that had sponsored the UNDRIP: Belgium, Bolivia, Costa Rica, Cuba, Denmark, Dominican Republic, Ecuador, Estonia, Finland, Germany, Greece, Guatemala, Hungary, Latvia, Nicaragua, Peru, Portugal, Slovenia and Spain.
And now, ask your leaders why your country was not a supporter of this Declaration?
However, any country outside this list may accede to the Declaration and can take action on the particular provisions of it, if they care enough for their poor indigenous peoples.
In this context, I hope that Malaysia would initiate a move to legislate Article 26 (3) of UNDRIP, which states: “26. (3) States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.”
This vestige of the colonial culture has a long history.
In Australia, the settlers from England did not recognise the existence of the Aboriginals and Torres Straits Islanders until the court of law in the case of Mabo 2 (1992) ruled that there was no such thing as ‘Terra Nullius’ (No Man’s Land) in Australia.
The judges reminded historians that there were human beings there with their own customary law applied and recognised by the inhabitants before the migrants from England came to settle on the land of the First Nations.
Indigenous Australians not recognised by Constitution
Incidentally, this Oct 14, all voters in Australia will have the final opportunity to either vote ‘YES’ to recognise the First Nations of Australia in the Constitution, or else to cast a ‘NO’ vote to continue excluding the Aboriginals from recognition in that Constitution.
At time of writing, opinion polls, greatly influenced by social media, indicate that the Aboriginals may not get enough ‘YES’ votes unless the majority of voters (non-Aboriginals) change at the last moment.
Should the forecast of negative vote prove correct, it would be back to square one for the First Nations all because they are in the minority.
That would be simply majority tyranny, mate.
Not too bad in the case of the Maoris of Aotearoa New Zealand, although it took them 153 years to derive real benefits from the Treaty of Waitangi, 1840.
At last, in 1993, there was established the Maori Land Court. The preamble to the Te Ture Whenua Maori Act, 1993, reforming the laws relating to Maori land, states: “Whereas the Treaty of Waitangi established the relationship between the Maori people and the Crown and whereas it is desirable that the spirit of the exchange of ‘kawanatanga’ for the protection of ‘rangatiratanga’ embodied in the Treaty of Waitangi be reaffirmed: And whereas it is desirable to recognise that land is a ‘taonga tuku iho’ of special significance to Maori people and, for that reason, to promote the retention of that land in the hands of the owners, their ‘whanau’, and their ‘hapu’: And whereas it is desirable to maintain a Court and to establish mechanisms to assist the Maori people to achieve the implementation of these principles.”
The Maoris had refused to be treated as being landless people in the Land of the Long White Cloud, which certainly was not a terra nullius. Many warriors died while defending their ‘whanau’ and their ‘hapu’ – read the history of ‘The Battle of Waikato’.
The Maoris insisted on an agreement before they could deal with the new settlers. They signed the Treaty of Waitangi on the understanding that they did not pass the rights to land to the settlers, except in a properly drawn up transfer (sale and purchase) between willing individuals.
Many Maori leaders signed, and many others did not.
Debate started raging over the real intentions of the signatories to the Treaty since its signing, but the Maoris never gave up their campaign ‘Iriro whenua atu, iriro whenua hoki mai’ (land taken, land must be given back).
Prof Keith Sinclair, author of ‘A History of New Zealand’, printed in Great Britain by Cox and Wyman Ltd 1952, writes: “By the first article the chiefs ceded their sovereignty to the Queen. In return the Queen guaranteed the Maoris in the possession of the lands, forests, fisheries, and other property which, collectively or individually, they possessed. They yielded to the Queen the sole right of purchasing their lands. Finally, the chiefs were given the rights and privileges of British subjects. One chief interpreted the treaty as meaning that ‘the shadow of the land goes to Queen Victoria but the substance remains with us.”
An Under Secretary in the Colonial Office, reading these words, feared that the Maoris would ‘discover that they had parted with a not insubstantial shadow’.
Despite the ‘discovery of the insubstantial shadow’, it must be acknowledged that the Maoris have achieved a measure of success in terms of the benefits enshrined in the Treaty.
How? They have been incessantly scrutinising it from all angles for the past 150-over years.
I wonder when do we the indigenous peoples of Malaysia learn from the Maoris in terms of establishing mechanisms to assist us to achieve the implementation of restoring our rights to ‘Pemakai Menoa’ and ‘Pulau Galau’, for the benefit of our ‘whanau’ and our ‘hapu’ (families and tribes)?