UN Permanent Forum on Indigenous Issues - May 2011

Doctrine of Discovery

19 November 2010
University of New South Wales
National Indigenous Policy and Dialogue Conference
Presented by Ms. Tammy Solonec,
Managing Solicitor - Law and Advocacy Unit,
Aboriginal Legal Service of WA (ALSWA)
Mr Les Malezer,
Foundation for Aboriginal and Islander Research Action (FAIRA).

The Indigenous Peoples Organisation (IPO) network of Australia presented an intervention on the Doctrine of Discovery at the United Nations Permanent Forum on Indigenous Issues (UNPFII) in April 2010. At that Forum, it was declared that the theme for the 2012 UNPFII would be the Doctrine of Discovery and Articles 28 (restitution) and 37 (treaties and agreements) of the Declaration on the Rights of Indigenous Peoples. This seminar was developed as a strategy to assist the IPO network of Australia in their preparations for 2012.

The Doctrine of Discovery is similar to Terra Nullius, with its basis in US law. It is most closely linked to the 1823 US case of Johnson v McIntosh. The Doctrine can be traced back to a series of Papal Bulls from the 1400s which sanctioned Christian explorers including Christopher Columbus to colonise and exploit non-Christian nations and claim their land for themselves. This became known as the Law of Nations.

Johnson v McIntosh was used as reasoning to declare a treaty made between the Port Phillip Association and a delegation of Aboriginals over what is now Melbourne void. This resulted in a proclamation by NSW Governor Bourke in 1835 prohibiting anyone other than the Crown from entering treaties with Aboriginal peoples in Australia. This proclamation articulated the legal principle of Terra Nullius, which was enshrined into Australian law by the Privy Council in the 1889 case of Cooper v Stuart.

The Doctrine of Terra Nullius became a morphed and more extreme version of the Doctrine of Discovery and was not overruled until the 1992 case of Mabo v State of Queensland. However, the legacy of Terra Nullius remains with the Crown retaining the underlying sovereignty of all land in Australia.

The Papal Bulls that sanctioned the invasion and exploitation of Indigenous peoples lands all around the world are still valid. The US decision of Johnson v McIntosh has not been overruled. Johnson v McIntosh continues to be relied on around the world including in Australian post Mabo decisions.

Source: Aboriginal Legal Service - WA

More than 1,300 delegates are expected to attend the tenth session of the United Nations Permanent Forum on Indigenous Issues at Headquarters in New York from 16 to 27 May.

The 2011 Permanent Forum is a review year and the focus will be on the implementation of Forum recommendations on economic and social development, the environment and free, prior and informed consent.

The Permanent Forum will engage with Member States, United Nations agencies and civil society. Delegates will include the United Nations, intergovernmental organizations, Indigenous Peoples' Organizations, non-governmental organizations and academia.

During the second week of the session, the Permanent Forum will hold an in-depth dialogue with the United Nations Children's Fund (UNICEF) to obtain a better understanding of its functions, and also to consider some of the challenges and opportunities faced by United Nations agencies in discharging their mandates, especially those related to indigenous peoples. The dialogue will include brief presentations from senior UNICEF officials, as well as regional coordinators.

The special regional focus of the Permanent Forum is on indigenous peoples of the Central and South America and the Caribbean region. Other special features include a discussion on the Permanent Forum's mission to Colombia, a half-day discussion on the right to water and indigenous peoples and discussions on studies completed this year by the Forum (during the second week of the session).

The Permanent Forum expects some 30 United Nations and other inter-governmental organizations and about 60 Governments to participate. The Secretary-General, the President of the Economic and Social Council, and the Under-Secretary for Economic and Social Affairs will attend the opening of the session.

Human Rights
The Forum has invited the Special Rapporteur on the Rights of Indigenous Peoples to have a dialogue during the first week. Members of Expert Mechanism on the Rights of Indigenous Peoples and the Chairperson of the Forum will also participate.

Other highlights of the session include discussion on the World Conference on Indigenous Peoples, during the second week of the session; discussion on the Rio+20 Conference, again during the second week of the session; and follow-up recommendations and action on the various studies that will be presented during the Forum.

Cultural Exhibition on Indigenous Peoples and Water
During the Permanent Forum session, there will be an indigenous exhibition at the United Nations, which aims to present the ways in which water is tied to indigenous peoples' spiritual, cultural, political and economic systems. The exhibition includes photographs from a number of internationally recognized artists, such as Wayne Quilliam, one of Australia's most

respected indigenous photographers. Mr. Quilliam is the first indigenous photographer to be featured at the International Photo Biennale and has created and curated more than 100 exhibitions throughout the world. Other artists whose works will be on display include Ina Hume ( Bangladesh), David Hernandez-Palmar ( Venezuela), Brian Adams ( United States), and Troy Donovan Hunter ( Canada).

Meetings with the Special Rapporteur - 2011
The Special Rapporteur, Professor James Anaya, will hold individual meetings with representatives of indigenous peoples and organizations during the tenth session of the United Nations Permanent Forum on Indigenous Issues, in New York. The meetings will be held from 18 to 20 May 2011.

United Nations Permanent Forum on Indigenous Issues
Session Schedule - UN Headquarters, New York
  1. First Session, May 2002
  2. Second Session, May 2003. Special theme: "Indigenous Children and Youth".
  3. Third Session, May 2004. Special theme: "Indigenous Women".
  4. Fourth Session, May 2005. Special Theme: "Millennium Development Goals and Indigenous Peoples with a focus on Goal 1 to Eradicate Poverty and Extreme Hunger, and Goal 2 to achieve universal primary education".
  5. Fifth Session, May 2006. Special theme: "The Millennium Development Goals and indigenous peoples: Re-defining the Millennium Development Goals".
  6. Sixth Session, May 2007. Special theme: "Territories, Lands and Natural Resources".
  7. Seventh Session, April 2008. Special theme: "Climate change, bio-cultural diversity and livelihoods: the stewardship role of indigenous peoples and new challenges".
  8. Eighth Session, May 2009. Review year.
  9. Ninth Session, May 2010. Special Theme: "Indigenous peoples: development with culture and identity; articles 3 and 32 of the United Nations Declaration on the Rights of Indigenous Peoples".
  10. Tenth Session, May 2011. Review year.
  11. Eleventh Session, 2012. Special Theme: "The Doctrine of Discovery: its enduring impact on indigenous peoples and the right to redress for past conquests (articles 28 and 37 of the United Nations Declaration on the Rights of Indigenous Peoples)".

More Info on 2011 Session
For a full schedule of side events, please see www.un.org/esa/socdev/unpfii/documents/Side_events_program_10session_Lat....

For more information on the tenth session of the United Nations Permanent Forum on Indigenous Issues, please see www.un.org/esa/socdev/unpfii/en/session_tenth.html.