LXGA6304 ( 2017-2018)

GROUP WORK / PRESENTATION AND ASSIGNMENT

“The discourse of universal human right is tied directly to a politics of

regret because the advocates believe that only gestures of reparation,
apology, and acknowledgement can restore the dignity of history’s victims
and can deter new outbreaks of inhumanity. ”

How does this statement reflect the status of indigenous peoples and what
practical steps have been or can be taken by states for reparation?

By:
LER LIAN HENG (LGA 160039)
NG REN ZHENG (LGA 160014)
THONG MING SEN (LGA 160063)
CHIEW CHOON MAN (LGA 160055)
 Abstract
● The discourse of reparations for indigenous peoples, more than a legal
issue, is a philosophical and social problem. What happened in the past
leaves tracks that it is not possible to cancel and it is thus inevitable that,
sooner or later, the ghosts of past wrongs will rise from their graves, forcing
the nation to confront an unwelcome reality.

● This paper agrees with the statement and will examine the practical steps of
reparation taken by different countries.
 Introduction
• Indigenous peoples have endured grave injustices throughout history.

• Even after international affirmations of indigenous rights, massacres, forced

removal, and persecution have continued.

• Of particular concern in recent years, extractive projects and other commercial

developments have threatened their lives and livelihood.
REPARATION
● Arguments for reparations are commonly made as though the ideas of reparation
were self-evident, yet it is likely that to the extent that they are understood as
commands of justice, other important questions ought to be answered.

● For indigenous people, it is the continuing diminution of their sovereignty that is the
essence of the injury

● The claims by indigenous people entail the vast reduction in the land, the cultural
displacement that contact with European colonists entailed, the slaughter in the
conquest of Latin America and the “opening of the West”.

● In many ways, the complex idea of reparations is not reducible to a legal formula
FORMS OF REPARATION
● “Even the ‘simple’ recognition of their surviving customary land tenure and remedying
those state institutional mechanisms and related conditions that continue to allow for
invasion or dispossession of indigenous lands’ amount to a form of reparation for
indigenous people” – Professor James Anaya

● Material reparation

● Immaterial reparation
Material reparation
● Land rights represent a key element of indigenous culture, integrity and identity and
they are thus at the centre of indigenous life as a whole

● Restitution of lands proved to be appropriate in cases of misappropriation of ancestral

lands

● Compensation is considered aas unsuitable to provide adequate reparation for injustices

suffered by indigenous peoples as they generally feel that their own values and identity
may not be compensated with money, in contrast to typical Western mentality

● Where restitution of the specific lands that traditionally belonged to the indigenous
groups is materially impossible, then they should be replaced by territories “equal in
quality, size and legal status” with respect to the original ones – Article 28 of UNDRIP
Immaterial reparation
● ‘Mere’ recognition of indigenous rights in national legislation

● Disclosure of truth

○ Provides victims with a sense of justice, prevents impunity of perpetrators and prevents recurrence of breaches
in the future

○ Exposes past events

○ Prevent governments from escaping their responsibility through secreting the truth

○ Awareness of the tragedy suffered thereby creating a general feeling of solidarity for victims

○ Promote the remembrance of tragedies

● Apology which signifies admission of guilt by the responsible party and imply a tacit
commitment to avoid such behaviour being repeated in the future
INDIGENOUS PEOPLES IN
AUSTRALIA
History/Status of Indigenous Australians
• Australia is a constitutional democracy organised under a federal system. Australia
has retained its English heritage through ‘responsible government’ and the
continued presence of the monarchy, represented by the Governor-General, as the
head of state.
• The common estimate of the length of Indigenous Australians’ occupation of
Australia prior to white settlement in 1788 is around 40,000 years and Indigenous
Australians organised themselves in tribes that were typically nomadic but
occupied defined areas.
• When the first white settlers arrived in 1788, an estimated 300,000 to more than
one million Aboriginal and Torres Strait Islander Peoples inhabited the Australian
continent. Aboriginal society comprised hundreds of language groups of varying
sizes and each language group shared a common language, territory and cultural
attributes.
Cont…
• Indigenous Australians had only minor contact with Europeans prior to 1788,
mainly with Dutch explorers on the west and north coasts and with Captain Cook
who claimed the east coast for England in 1770.
• The First Fleet’s arrival at Sydney Cove in 1788 marked a dramatic change in
Indigenous Australians’ way of life: “Within months of [the First Fleet’s arrival]
there was open animosity as Indigenous people protested against the Europeans
cutting down trees, taking their food and game, and driving them back into others’
territories.
• Bitter conflict followed as Aboriginal people engaged in guerrilla warfare –
plundering crops, burning huts, and driving away stock to be met by punitive
expeditions of great ferocity in which bands of Aborigines encountered were
indiscriminately killed.”
Cont…
• The settlement of Australia, which many Indigenous Australians consider an
invasion, continued unabated and the settlement decimated the Indigenous
Australian population with disease, starvation, intentional poisoning and rifles, to
which spears and boomerangs were vastly inferior.

• The Europeans forcibly moved many of the remaining Indigenous Australians

onto missions and government reserves while other Indigenous Australians
became unemployed fringe dwellers, or casual laborers in rural Australia.

• The result was that Indigenous Australians “were no longer allowed to live as they
had done for tens of thousands of years, but neither were they able to become
equal partners and citizens in the wider society that had taken their land.”
Cont…
• The federation of the Australian colonies in 1901 resulted in a Constitution that
assumed Indigenous Australians were a dying race and there was no need to make
provision for them in an enduring document.

• It was not until the 1960s and 70s that public awareness about the history and
living conditions of Indigenous Australians started to grow.

• In the 1990s, reports into Aboriginal Deaths in Custody and the separation of
Aboriginal and Torres Strait Islander children from their families (Bringing Them
Home Report) highlighted the destructive ramifications of government social
policy on Indigenous Australians.
Barriers to the Rights of Indigenous Australians
• The lack of a settlement between the state and Indigenous Peoples also manifest
itself in the way in which Indigenous peoples, their rights and institutions are
insecure and fleeting and subject to the whims of the political party of the day and
the ideological currents of the period.
• For example, the Aboriginal and Torres Strait Islander Commission (“ATSIC”)
established by the federal coalition government in 2005. The Racial
Discrimination Act 1975 enacted by the federal Labor government in 1975, was
suspended in its application in 1998 so that the federal coalition government could
amend the Native Title Act 1998 to discriminate against native title on the basis of
race.
• Surprisingly, in 2004, the same government reinstated its support for self-
determination in international law, but only after abolishing ATSIC.
• These examples highlight how insecure Indigenous peoples’ position is within the
polity in the absence of any structural recognition. The welfare of Indigenous
peoples is inextricably linked to the goodwill of the political party of the day.
Cont…
• In the last fifteen years there has been an increasing demand for and use of
apologies in the public arena in relation to governmental actions whether relating
to war or treatment of Indigenous people or other matters.

• .In Australia these demands have frequently been denied ‘for legal reasons’. This
has not satisfied the desire for an apology which to some is seen as the only
morally responsible response to, for example, the treatment of Indigenous People.

• The refusal to apologise because this might lead to a legal requirement to

compensate has no force in the public domain in a country where parliament can
ultimately decide such matters, for instance, in Australia, the argument about
apologising to indigenous people is seen as part of reconciliation.
Cont…
• The former Australia Prime Minister John Howard (Howard government from
1996 – 2007) expressed ‘regret’ about Australia’s history of injustice towards
Indigenous Australians, but couldn’t manage an apology.

• Nevertheless former Prime Minister Howard clearly had support in relation to his
refusal to give an official government apology to members of the Stolen
Generation.

• For instance, some conservative commentators, inhumanely, suggested that

Aboriginal children forcibly removed from their families were ‘rescued’, not
‘stolen’ and they even suggested that the Stolen Generations should be referred to
as the ‘rescued’ generations; Reginald Marsh, writing in Quadrant, also suggested
that the Bringing Them Home report should have been named the “Report on the
Rescued Children”.
 Steps and Reparations
taken for Indigenous Peoples in
Australia
Native Title Act
• The non-recognition of native title in Australia originated in the international law
that existed at 1788 and recognised three effective ways of acquiring sovereignty
over territory: (1) conquest, (2) cession, and (3) occupation of territory that was
terra nullius (belonging to no one).
• Australia first recognised Indigenous Australians’ claim to native title in 1992,
204 years after white settlement of Australia, in Mabo [No. 2] – the High Court in
a 6-1 majority held that native title could exist but that the sovereign, subject to
the Constitution and other valid laws, may extinguish native title.
• Native title means the rights and interests of Aboriginal and Torres Strait Islander
people in land and waters according to their traditional laws and customs, that are
recognized under Australian law.
• The native title of a particular group will depend on the traditional laws and
customs of those people. Native title may also change over time.
Cont…
• The land on the Murray Island under consideration in Mabo [No. 2] had not had
the plaintiffs’ native title extinguished; However, the Mabo [No.2] decision left
undecided exactly when native title was extinguished pre-Mabo, where it may
continue to exist within Australia, and how existing native title could be claimed
or extinguished.

• As a result of this perceived uncertainty, the Federal Government passed the

Native Title Act 1993 (“NTA”), pursuant to the race power.

• The NTA sought to regulate future dealings affecting native title; validate past acts
that had been invalidated because of the existence of native title; and, provide for
the determination of native title and establish the National Native Title Tribunal
(“NNTT”) as a means to deal with those claims.
Cont…
• Since Mabo and the NTA, claims for land reform have been raised within a legal
framework.
• As of 1 June 2016, 352 native title determinations have been made; Of these, 276
were by consent, 40 were litigated, and 36 were unopposed.
• However, two subsequent events dramatically shifted the dynamics - the 1996
election of the Howard Government brought to power many individuals who had
argues that Mabo had been wrongly decided, and had voted against the NTA.
• While the High Court’s intervention in Wik Peoples v Queensland (1996) 187
CLR 1, which declared that native title could co-exist with pastoral leases,
significantly extending its reach, caused further disquiet among conservative
interests.
Cont…
• The High Court’s 265 page decision in Wik Peoples undermined the NTA’s
attempt at certainty- Two groups of native title claimants, the Wik and Thayorre
Peoples, claimed that pastoral leases had not extinguished their native title, by a
majority of four votes to three, the High Court agreed.
• The majority found that pastoral leases didn’t give the lessee a right of exclusive
possession; rather, the rights and obligations of the pastoralist depend on the terms
of the lease and the law under which it was granted.
• The Wik decision created uncertainty as to what could be done on pastoral leases
without impinging on native title rights – this uncertainty then led to another round
of calls for government action whereby the government responded to Wik with the
“Ten Point Plan” – The Ten Point Plan reconsidered how to balance the competing
interests of Indigenous Australians on one side, with pastoralists and miners on the
other side – the Federal Parliament enacted the Plan as the Native Title
Amendment Act 1998 (Cth).
Reparations
• Reparation is a significant aspect of the journey towards healing. Without
reparation claims to national ‘goodness remain illusory.
• Whilst a Compensation Tribunal has been set up in Tasmania, other Australian
jurisdictions have yet to follow suit and no doubt the calls for compensation for
members of the Stolen Generations will continue.
• In Australia – beginning in the late 1980s and continuing today, albeit in a
haphazard and belated fashion, the Australian government has sought to promote a
formal process of reconciliation between non-Indigenous and Indigenous
Australians.
• As a starting point this process has involved traditional transitional justice
measures such as truth seeking, recognition and acknowledgment of past injustice,
and institutional reform.
Cont…
• Primary examples include the 1997 Bringing Them Home Report on the Stolen
Generations, the 2008 Apology, the 1991 Royal Commission into Aboriginal
Deaths in Custody, and the 2006 Inquiry into Stolen Wages.

• Australian government responses to the Bringing Them Home Report mirrored

this approach (structural injustice), with then Prime Minister John Howard
refusing to apologise on behalf of this generation, in relation to the acts of earlier
generations.

• The Stolen Generations is the term that has been given to those Indigenous People
affected by the state-sanctioned removal of Indigenous children from their
families – a practice that was, in various forms, official government policy under
successive colonial, state, and territorial regimes between the late nineteenth
century and the 1970s.
Cont…
• These issues were first given prominence over ten years earlier by the publication
of Human Rights and Equal Opportunity Commission Act (HREOC)’s Bringing
Them Home Report.

• In 1995, HREOC was asked to establish a National Inquiry into the Separation of
Aboriginal and Torres Strait Islander Children from Their Families – the Inquiry
examined past and present practices of separation and the policies that supported
them, the adequacy of services available to those separated, and , as a later
inclusion, the principles relevant to determining the justification for compensation
for persons or communities affected by such separations.”
Cont…
• In 2008, Kevin Rudd, then Prime Minister of Australia, apologised in a special
session of Parliament to Aborigines who had been the victims of child removal
policies of previous government; some of the victims and their survivors were in
attendance, funds had been provided by the government and by public
subscription so that they could attend.

• It was witnessed and applauded by many Australians who watched it on television

or on screens set up in public places.

• After years of frustration with the refusal of the Howard government to apologise
to members of the Stolen Generations in relation to horrific government
oppression, the news that the Rudd government was going to issue an apology was
like a cool breeze on a sweltering summer day.
Cont…
• The comments from an article of Shelley Bielefeld in respect of the apology issued
by the Prime Minister Kevin Rudd are:-

“Rudd at least showed some indication of a willingness to examine Australia’s

colonial history with a modicum of intellectual honesty. Rudd showed himself to be
more concerned about issue of social justice for Indigenous Australians than
Howard, who consistently showed a callous disregard for such matters. Rudd spoke
of the need ‘to deal with the unfinished business of the nation, to remove a great
stain from the nation’s soul and, in a true spirit of reconciliation, to open a new
chapter in the history of this great land, Australia’. Rudd stated that such events
were ‘one of the darkest chapters in Australia’s history’. This level of
acknowledgment was long overdue. It was therefore an important ‘gesture toward
peace, between non-Indigenous and Indigenous Australians’.”
Cont…
• The Australian community has begun to demonstrate its support for Indigenous
Australians and has attempted reconciliation through an annual ‘Sorry Day’ and
‘Walk for Reconciliation’.

• National Sorry Day is an annual event that has been held in Australia on 26 May,
since 1998, to remember and commemorate the mistreatment of the country's
indigenous population. During the 20th century, Australian governments' policies
resulted in a “Stolen Generation” – described by John Torpey as
“Aboriginal children separated, often forcibly, from their families in the interest of
turning them into white Australians”.
Cont…
• Mabo Day occurs annually on 3 June. It commemorates Eddie Koiki Mabo (c. 29
June 1936–21 January 1992), a Torres Strait Islander whose campaign for
Indigenous land rights led to a landmark decision of the High Court of
Australia that, on 3 June 1992, overturned the legal fiction of terra nullius which
had characterised Australian law with regards to land and title since the voyage of
James Cook in 1770.
• In 2010 a campaign was launched to make it a national holiday in Australia. It has
been suggested that Mabo Day is more significant to Australians than the Queen's
Birthday (a national holiday in Australia), since it 'marks the day that non-
indigenous Australians were given the opportunity to reverse the damage caused
by the colonisation process'. In 2002, on the tenth anniversary of the High Court
decision, Mabo's widow, Bonita Mabo, called for a national public holiday on 3
June. On the eleventh anniversary, in 2003, the Aboriginal and Torres Strait
Islander Commission (ATSIC) launched a petition to make 3 June an Australian
Public Holiday.
Cont…
• NAIDOC (National Aboriginal and Islander Day Observance Committee) Week is
an Australian observance lasting from the first Sunday in July until the following
Sunday. NAIDOC Week celebrates the history, culture and achievements of
Aboriginal and Torres Strait Islander peoples. The week is celebrated not just in
the Indigenous communities but also in increasing numbers of government
agencies, schools, local councils and workplaces.
• National Reconciliation Week was initiated in 1996 by Reconciliation Australia to
celebrate indigenous history and culture in Australia and
foster reconciliation discussion and activities. It is held between 27 May and 3
June of each year, with the dates holding special historical significance: the former
marks the anniversary of the 1967 referendum in Australia and the latter marks the
anniversary of High Court of Australia judgement on the Mabo v Queensland of
1992.
Summary
• International human right law is relevant to Indigenous people within Australia
when it offers strategies, forums, and instruments that assist communities in
articulating, mobilising, and attaining the rights and recognition that they have
always pursued.

• While International human rights law has clear limitations, it plays an important
role in helping to transform political assertions into legal entitlements and it has
the potential to be of greater assistance.

• However, its power to effect real change is ultimately constrained by its

dependence on state acceptance and implementation.
Cont…
• Australia’s position on Indigenous Australians compromises its previous
credibility on human rights with the rest of the world.
• A country like Australia that must rely heavily on persuasion for conducting
foreign relations needs an unblemished human rights record if it is to be an
effective player in world politics.
• It must be remembered that law in general, and international law in this particular
context, cannot provide all answers.
• Reconciliation with Indigenous Australians is a moral or ethical issue for
Australians in resolving their view of themselves as fair-minded and tolerant, or in
Australian’s parlance ‘giving everyone a fair go’.
• Reconciliation is multi-faceted and the Australian Parliament needs to embrace
reconciliation.
INDIGENOUS PEOPLES IN
AFRICA
Defining ‘Indigenous Peoples’

• Controversial
• Some states insist that indigenous peoples do not exist in their countries, though
they admit to the existence of minorities or marginalized communities
• Eg. the Republic of the Niger insists that marginalization of indigenous
communities is not a deliberate policy, but , rather, is a result of ‘a confluence of
factors including, in particular, the economic conditions in the country
characterised by poverty, underdevelopment, lack of resrources, low literacy level
especially among the indigenous populations, and the rapid desertification of the
country.’
• Other states think that Africa as a whole is indigenous in the sense that they were
there before the European colonialist arrived.
African Charter of Human Peoples’ Rights

• African Commission on Human and Peoples’ Rights

• Extends the definition to include ‘those particular groups who have been left on
margins of development and who are perceived negatively by dominating
mainstream development paradigms, whose cultures and ways of life are subject
to discrimination and contempt and whose existences is under threat of
extinction’.
African Charter of Human Peoples’ Rights

• Provides that in no case shall a people be deprived of the right freely to dispose of
their wealth and natural resources

• Guarantees the right to equality, dignity, protection against domination, self-

determination and the promotion of cultural development and identity

• Prohibits discrimination of any kind such as race, ethnic group, colour, sex,
language, religion, political or any other opinion, national and social origin,
fortune, birth or other status.
Past and Present Injustices

• Till today, indigenous peoples are still denied their basic rights such as the
maintenance of their specific cultural identity and the land that constitutes the
foundation of their existence as a people

• Suffering from marginalization and dispossession to pave the way for the
economic interests of other dominant groups, large-scale development initiatives
and extractive activities

• Laws, values, customs and perspectives are increasingly being eroded

Past and Present Injustices (Factors and Consequences)
(a) Slavery

• 13 million Africans were illegally transported from the shores of West Africa to
the Western Hemisphere during the Atlantic slave trade period (1440– 1870) with
about 1,672,000 person dying en-route

• Suffered greatly from the practice of slave-trading and acts committed during the
execution of the practice of slavery

• The continuing deprivation of liberty and treatment of slaves after arrival in the
West

• The consequent effects of successive generations in the form of social and

economic inequality
Past and Present Injustices (Factors and Consequences)
(a) Slavery

• The call for reparation for slavery is unassailable

• The delegates at the Durban Conference said that:-

• . . . slavery and the slave trade, including the transatlantic slave trade, were
appalling tragedies in the history of humanity not only because of their
abhorrent barbarism but also in terms of their magnitude, organized nature and
especially their negation of the essence of the victims, and [ . . . ] that slavery
and the slave trade are a crime against humanity and should always have been
so, especially the transatlantic slave trade.
Past and Present Injustices (Factors and Consequences)
(b) Colonialism and artificial boundaries

• During the Berlin Conference (1884– 1885), it was observed that Africa was
sliced into various spheres of influence by the European powers, who made
territorial allocations to reduce armed conflicts among themselves rather than with
any regard for local inhabitants or geography

• ‘What we regard as Africa today is primarily what Europeans decided was Africa’
– Ali A Mazrui

• ‘The cradle of contemporary forms of fragmentation in Africa’ – Obinna C Okafor

Past and Present Injustices (Factors and Consequences)
(b) Colonialism and artificial boundaries

• Examples:-

• Yorubas of Nigeria – Divided into the colonies of Dahomey, Nigeria and the
Protectorate of Lagos
• Ewes – Between Gold Coast and Togo
• Efiks and Ibibios – Between Nigeria and Cameroon
• Somali – Between Ethiopia, Somalia, kenya and Djibouti
• Mossi – Between Ghana and Burkina Faso (then called Upper Volta)
• Kanuri became colonial subjects in Nigeria, Cameroon and Chad
Past and Present Injustices (Factors and Consequences)
(b) Colonialism and artificial boundaries

• Continued denial of human dignity to indigenous and other minority groups due to
failure by states to acknowledge the salience of pluralism and its centrality to the
democratic process

• Legacy of unequal access to education and other social goods

• Like the colonial ‘natives’, indigenous peoples still carry their identities with them
wherever they go and whatever they do, often at great cost, including re-
colonization and dispossession and their general exclusion from political
processes
Past and Present Injustices (Factors and Consequences)
(c) Denial of access to natural resources

• Examples

• San and Khoe communities in Southern Africa – the general lack of access to land
and other resources are directly linked to their cultural identities, rather than
reflecting merely effects of long-term poverty

• The extraction of oil reserves from Nigeria’s Niger Delta by transnational

corporations has caused oil pollution poisoning all known rivers and acid rain
from wasteful gas. Negatively impacting the livelihoods of indigenous pastoralists
and hunter-gatherer communities with no compensation or reparation for the
injustices
Past and Present Injustices (Factors and Consequences)
(d) Dispossession for ‘development’
• Many indigenous Africans have been forcibly evicted or displaced due to large-
scale development
• In cases of dispossession, the goal is usually stated to be the common good but of
all tyrannies, they turn out to be the most oppresive
• Example
• In the 1930s, the British colonial establishment drove out the Batwa of Uganda
from the forests in order to create conservation zones
• In 1991, the Ugandan government establish several parks for gorillas, thereby
further dispossessing the Batwa perople of their forests and leaving them landless
 Steps and Reparations
taken for Indigenous Peoples in
Africa
Imperatives of Reparation
(a) Legal Principles
• African Charter -
• ‘in case of spoliation the dispossessed people shall have the right to the lawful
recovery of its property as well as to an adequate compensation’
• Protocol to the African Charter of the Establishment of the African Court on
Human and Peoples’ Rights –
• ‘[I]f the Court finds that there has been violation of a human or peoples’
rights, it shall make appropriate orders to remedy the violation, including the
payment of fair compensation or reparation.’
• All African states have ratified the African Charter (except for Morocco)
• Most have ratified the Protocol on the Court
• These provisions made it possible for national courts, in the first instance and the
African Commission and Court, in the second instance order reparations.
Imperatives of Reparation
(a) Legal Principles
• Nigeria has domesticated the African Charter through local enactment

• Its constitution requires the prompt payment of compensation for any compulsory
acquisition of property and gives the person claiming such compensation a right of
access to a court of law
Imperatives of Reparation
(b) Practices
• Soc & Econ Rights Action Ctr v Nigeria (SERAC case) (2001)
• Complainant made a series of allegations against the Nigerian Government in
respect of the oil consortium between the Nigerian National Petroleum
Company and Shell Petroleum Development Corporation
• Exploitation of oil reserves in the Ogoni indigenous community with no regard
for the health and environment of the community
• Toxic waste was released into the environment and local waterways resulting
contamination of water, soil and air
• Operations were not monitored nor safety measures were taken
• Found: Nigeria had violated the Charter
• It appealed to the government to ensure protection of the environment, health
and livelihood of the Ogoni indigenous people by ensuring, inter alia, adequate
compensation to victims was given, comprehensive clean up of lands and
rivers damaged by oil operations
Imperatives of Reparation
(b) Practices
• Alexkor Limited v The Richtersveld Community
• Involved 3000 Nama subgroup of Khoikhoi peoples living in Northern Cape
Province
• In 1950s, the South African Government evicted them to make way for
diamond mine
• The indigenous community took the government and the mining company to
court, claiming ownership rights over land and the minerals therein
• The South African Constitutional Court established the principle that the
indigenous communities have ‘customary right’ to their land that was not
extinguished by colonial annexation
Imperatives of Reparation
(b) Practices
• Involves the San people from the Central Kalahari Game Reserve, an animal
sanctuary where the national government moved the to a settlement camp outside
the game reserve in 2002.
• The government argued that the San people did not belong to the Kalahari any
more before their lifestyle had changed and that their presence interfered with
conservation
• In reality, it has more to do with diamond mining more than with conservation
• It was held by the Botswana High Court in Lobatse that the government’s refusal
to allow the indigenous people a permit to return to their land ‘unlawful and
unconstitutional’ and that they were entitled to return, live and hunt on their
ancestral alnds.
Imperatives of Reparation
(b) Practices
• Chief Joel Anaro v Shell Petroleum Development Copany Nigeria
• Held: Shell was liable for negligence and breach of statutory duties for oil spills
that affected fish-ponds, fish channels, mangrove swapms etc belong to local
communities
• Damages and compensation of 30.5 million naira (about US$250,000) was
awarded for loss of income from fishing rights, domestic animals, destruction of
fishing grounds and materials
• Shell refused to pay, leaving the aggrieved parties with no further legal redress
Imperatives of Reparation
(b) Practices
• In October 2000, the African Commission on Human and Peoples’ Rights adopted
‘Resolution on the Rights of Indigenous People/Communities in Africa’
• The resolution established a a working group of experts on the rights of
indigenous or ethnic communities in Africa (“the Working Group”).
• Its mandate includes:
• Examine the concept of indigenous people and communities in Africa
• Study the implications of the African Charter on human rights and well-beings
of indigenous communities
• Consider appropriate recommendations for the monitoring and protection of
the rights of indigenous communities
Imperatives of Reparation
(b) Practices
• The Working Group came up with a publication in 2005.
• The Report recommended that the African Commission should, inter alia,
• Establish a focal point such as a Special Rapporteur within the African
regional human rights system
• Establish a forum for regular meetings of indigenous participants, experts and
other human rights activists
• Insert specific enquiries in any revised rules of procedure of the African
Commission for period reports of state parties under the African Charter
Imperatives of Reparation
(b) Practices
• Some states have introduced community-based natural-resource management
programmes for e.g. Namibia’s conservancies and Zimbabwe’s CAMPFIRE
schemes

• These schemes provide institutional environments for the cultural and political re-
empowerment of the communities.

• There are also states who have designed its development policies with little regard
for indigenous peoples’ rights for e.g. Botswana where ethnicity was excluded
from their constitutional engineering
Summary
• The global community especially those western countries that were involved in
slave trade and colonialism must complement the states’ activities towards
rebuilding indigenous communities.
• These countries ‘cannot proselytize in relation to human rights while
simultaneously skirting the question of reparation for injustices committed by its
governments in the past’.
• It is acknowledged that law and other strategies were deployed to compensate
Africa’s indigenous peoples.
• The global community should help the marginalized peoples to realize their
aspirations in controlling their own institutions, ways of life and economic
development.
• The precarious levels of economic and social development that Africa’s
indigenous peoples endure demand more than a muted affirmation of concern.
America
Status of Indigenous Peoples in the
American Continent
Status of Indigenous Peoples in the United States
● The rights of Native Americans in the United States are governed under Title 25 of the
United States Code.

● Notwithstanding the wide-ranging protection afforded under Title 25, the Report of the
Special Rapporteur on the Rights of Indigenous Peoples indicated that there appears to
be a trend in the United States in relation to the stereotyping of Native Americans as
creatures of the past through ideological concepts created by usage of Indian names in
sports culture as well as mass media engendering an unhelpful element of racial
discrimination which hinder efforts to properly understand the plight of Native
Americans .
Cont...
● The United States Department of Justice reported in its study titled American Indians
and Crime: a BJS Statistical Profile that based on its findings covering the period from
1992 to 2002 Native Americans are more than twice as likely as members of the
general population to be the victims of violent crime. The issue of discrimination may
have a role to play in the degree of violence to which Native Americans are subject.

● This disproportionate victimization of Native Americans indicates the degree of

vulnerability they are labouring under which needs to be addressed by the government
of the United States.
Status of Indigenous Peoples in Canada
● The Aboriginal Indians of Canada are regulated under the Indian Act.

● In its report titled Structural Issues Affecting the World's Indigenous Peoples, the
Canadian Coalition for Global Health Research reported that the main issue faced by
the Aboriginal Indians of Canada is the issue of distrust against the government.

● In particular, the report highlighted the general perception among Aboriginal Indians
that the narrow definition of the term “Indian” under the Act is part of the
government’s attempt to “legislate out” Indian identity.
Cont...
● Additionally, the Institute for the Study of International Development also highlighted
in its report titled Indigenous Peoples in Canada: Understanding Divergent
Conceptions of Reconciliation that there is a general concern among the Aboriginal
Indians that, notwithstanding the closure of Indian residential schools, the government
is still practising assimilationist policies to virtually wipe out Aboriginal Indians a few
generations down the lineage.

● In terms of actual murders, statistics indicate that Aboriginal Indians make up 23% of
Canada’s murder victims though they only constitute 5% of the population. Similar
with Native Americans, this indicates the degree of vulnerability Aboriginal Indians
are labouring under which needs to be addressed by the Canadian government.
Status of Indigenous Peoples in South America
● It has been estimated that indigenous populations in South American countries make
up 8% of the population in such countries.

● As this geographical region is still relatively undeveloped, the exploitation activities of

oil as well as other natural resources situated on the lands inhabited by indigenous
peoples pose a substantial threat to the culture and lives of such peoples.

● The Inter-American Court of Human Rights in the case of Sawhoyamaxa Indigenous

Community v. Paraguay held that in the case of violation of land rights, restitution is
the ideal form of reparation.
Cont...

● Similarly, the Committee on the Elimination of Racial Discrimination has

recommended that in circumstances where indigenous peoples have been deprived of
lands and territories, which were traditionally owned or otherwise inhabited or used by
them, without their free and informed consent, the relevant state is obliged to take steps
to return those lands and territories.

● In short, compensation in lieu of restitution should only be used where the

circumstances render it impossible to return the land to the indigenous peoples.
Practical Reparation Steps
Which Have Been Taken by
American States
Examples
● Official Apology
-On 23 November 1993, the United States Congress passed a resolution to apologize to
Native Hawaiians for overthrowing the Kingdom of Hawaii and the resultant removal of
the self-determination rights of Native Hawaiians.

● Equitable Restitution
-In June 2003, the Argentine courts in the Quintriqueo case ordered a piece of land in the
territory of Paso Coihue which was previously occupied by the Mapuche Quintriqueo
community to be returned to them as the community has previously been improperly
removed from the land.
-
Cont...
-In the Agreement Respecting a New Relationship Between the Cree Nation and the
Government of Quebec, the Quebec provincial government restored the autonomy of the
Cree people restored the autonomy of the Cree People including returning to them the
rights to manage natural resources within their territorial area.

● Financial Compensation
-The United States Supreme Court in United States v. White Mountain Apache Tribe
ordered the government to pay compensation for the losses and damages suffered by the
White Mountain Apache Tribe which arose as a result of the government’s failure to
properly manage properties which were held by the government on trust on behalf of the
Tribe.
Cont...

-In January 1998, the Canadian government established a fund worth $245 million as a
form of compensation for the removal of the children of First Nation communities from
their homes and their subsequent placement in residential schools where the children were
alleged to have been abused.

-In terms of practical utility, restitution is arguably the best form of reparation followed by
compensation and apology. Nonetheless, the utility value of an official apology issued by
the state should not be underestimated as such an apology may contain implicit recognition
of the rights of indigenous peoples.
Practical Reparation Steps
Which Can Be Taken by
American States
United States
● The issue affecting Native Americans is that the government adopts an individualistic
approach of remedial justice towards the notion of reparation for American Indians.

● As Native Americans exist as part of an indigenous community whole, it is submitted

that the government should adopt a social restructuring approach as part of its policies
of providing reparations for Native Americans.

● By adopting the social reconstruction approach, the government may be able to better
better address the issue of discrimination faced by Native Americans. This form of
social reparation may be what Native Americans require most.
Canada
● The Aboriginal Indian communities seem to harbour a sense of distrust towards the
government whereby this distrust seems to be partly justifiable by statistics which
show that the Aboriginal Indian communities are significantly disadvantaged in terms
of living conditions, economic standing, education and safety levels as compared to the
general population.

● As the element of trust is essential for any community outreach or assistance policies
to be fruitful, the best form of reparation is perhaps that of national reconciliation
which may be achieved by the Canadian government if it properly implement the
provisions set out in the Principles Respecting the Government of Canada’s
Relationship with Indigenous Peoples issued in July 2017.
South America
● In general, the issue of land rights are of utmost importance to indigenous peoples in
South American countries.

● Professor Nieves Gomez opines that due to the strong spiritual connection of
indigenous communities of South American countries with their lands, any reparation
in relation to breaches of land rights of these communities ought to take into
consideration any spiritual and psychosocial damage suffered by such communities.

● Accordingly, South American governments should be required to effect both

restitution and apology forms of reparation in the event of any breach of land rights of
indigenous communities so as to properly remedy any spiritual and psychosocial
damage in addition to ensuring that such wrongs would not recur in time to come.
Summary
● The indigenous peoples of North and South America have to deal with issues of
different nature.

● Native Americans in the US and Aboriginal Indians in Canada have to deal with issues
of discrimination and trust respectively whereas indigenous peoples in South America
have to deal with issues relating to land rights.

● Accordingly, social reparations in the form of social reconstruction and national

reconciliation should be implemented in US and Canada respectively whereas
reparations which properly recognize the spiritual connection of indigenous peoples
with their lands should be implemented in South America.
The History of Taiwan Timeline
1200 1300 1400 1500 1600 1700 1800 1900 2000 2100 2200 2300 2400 2500 2600

Taiwan In The Beginning

1st Human Settlement on the Island

China and Taiwan

More People Leave China

Three Groups of People on the Island

Taiwan The Discovery Years

The Portuguese "discover" the Island of Taiwan.

The Island of Taiwan is Colonized by the Dutch

The Spanish Want a Part of Taiwan

The Dutch Take Over Spains Claim

Taiwan The Early Years

Admiral Cheng Cheng-kung Takes Control of Taiwan

Cheng's Son and Grandson Rule the Isalnd

Rapid Growth - Chengs Followers

Qing Government Takes Over Taiwan

Taiwan Under Japanese Occupation

War Between Japan and China

Japan Conquers Taiwan

Japan Rules

Taiwan and The Republic of China AKA THE ROC

Dynastic Rule Over China Ends/Double Ten Day/ ROC Forms

Political Parties Form in China

● Retrocession Day in Taiwan

Taiwan Under Chiang KMT

 Chiang's Rule

Martial Law

After Chiang Kai-shek

● Martail Law is Lifted

● Taiwan's First Native- Born President

Taiwan P ost Martial Law -Present Day Change of Government between

DPP and KMT. In the latest GE held
in 2016, Tsai Ying Wen from DPP
elected as the new President
 THE TRIBES IN TAIWAN

• Amis • Yami • Sediq

• Thao • Hla’ alua
• Atayal • Kanakanavu
• Kavalan
• Puyuma
• Paiwan • Truku • Saisiyat
• Sakizaya
• Bunun
 REPARATION BY THE
STATES
On 1st August 2016, for the first time in the nation's history,
Taiwanese President Tsai Ing-wen issued a formal apology
Monday to the indigenous people of Taiwan for their
enduring centuries of "pain and mistreatment" at the hands
of the country's power brokers.
• At the same time, under the principle of respecting the Pingpu ethnic group's self-identity,
and recognizing their identity.

• To delineate and announce indigenous traditional territories and lands.The government will
step up the pace and submit for legislative deliberation three laws of great importance to
indigenous peoples: the Indigenous Peoples Self-Government Act, the Indigenous Peoples
Land and Sea Areas Act, and the Indigenous Languages Development Act.

• On every August 1 to come, the Executive Yuan will report to the indigenous peoples our
progress on restoring historical justice and transitional justice.

• To implement the Indigenous Peoples Basic Law, to serve indigenous historical justice, and
to lay the foundation for indigenous self-government – these are the three major goals for the
government's policy towards indigenous peoples.
 Tasks of the committee
According to Article 2 of the aforementioned Guidelines, the tasks of the committee are as
follows:
• Collect, process, and disclose accurate historical information regarding violations against
indigenous peoples and deprivation of indigenous rights caused throughout history by alien
regimes or immigrants.
• Draw up plans for administrative, legislative, or other measures to provide restitution,
reparations, or compensation for violations against indigenous peoples and deprivation of
indigenous rights.
• Conduct a comprehensive review to identify laws and policies that cause discrimination against
indigenous peoples or violate the Indigenous Peoples Basic Law, and put forward amendment
recommendations.
• Actively implement the UNDRIP and the various relevant international human rights
conventions.
• Collect, process, and discuss information and views regarding indigenous historical justice and
transitional justice.
On November 1 of 1996, the Legislative Yuan reviewed and passed the “Organic Rules of
Council of Indigenous Peoples, Executive Yuan ”, and the Executive Yuan officially
established “Council of Indigenous Peoples, Executive Yuan” on December 10 in the same
year to the solely responsible for overall planning of affairs of indigenous peoples, which
achieved a new milestone in the history of ethnic policy of our country, formulated and
promoted the policy of indigenous peoples, was more consistent and proactive, and
expressed the function of overall planning, leading the indigenous peoples to an all-around
development in stepping into a new century.
Brief History of Sarawak
•1835 Beginning of the Sarawak Rebellion (against the Sultan of Brunei) led by Sarawak
chief Datu Patinggi Ali.
•Sept 21 1841 Brooke made rajah and governor of Sarawak.
•1846 Sultan of Brunei unhappy with the English and Brooke.His first move against Brooke
is to order the killing of Englishmen.
•Brooke attacks Brunei in retaliation. Assisted by the British navy, they capture the city.
The Sultan is allowed to return to his palace after surrendering. In addition he gives
Sarawak completely to Brooke and his heirs forever without payment of any more money.
•1849 The Battle of Beting Maru sees Brooke defeating Iban pirate chief named
Linggir. He is helped by Captain Farquhar, his ships of the Royal Navy and by Malay
and Dayak in prahus. Altogether there are about 75 boats and 3,500 men on Brooke’s
side. After a hard fight for several hours in the darkness, many pirate ships are sunk
and hundreds of pirates killed or captured. Brooke builds forts at Lingga and the
mouth of the Skrang River on Batang Lupar to prevent more attacks.

•1855 Brooke starts the Supreme Council made up of a small group of important
officers in Sarawak to help him govern the country.

•1857 Kuching sacked by Chinese rebels. Brooke retaliates by enlisting the help of
loyal Malays.
•1861 After their defeat at sea, pirates move farther inland to continue attacking
villages and capturing heads. The chief leader is an Iban named Libau, better known
as Rentap. From his Bukit Sadok fort, he leads his men to attack villages or the
Rajah’s forts along the Batang Lupar.

•After two unsuccessful counter-attacks, Charles becomes more determined to capture

Rentap’s fort at Bukit Sadok. He builds a twelve-pounder cannon in Kuching which
takes 500 of his men to pull through the jungle to Bukit Sadok. Once there, 60 of his
strongest men lift the cannon on poles and carry it to the top of Bukit Sadok 3,000
feet high. The cannon fire penetrates Rentap’s sturdy fort made of thick belian wood.
Rentap is never to be heard of again.

•1865 Charles forms the Council Negri which include people in the Supreme Council,
other officers of the rajah’s government and the most important native chiefs.
•1888 Sarawak declared a British protectorate.
•1917 Charles Vyner Brooke succeeds his father Charles as Rajah.
•1931 Penghulu Asun leads a small rebellion among the Ibans against the government in the
headwaters of the Kanowit, Entabai and Julau Rivers. Vyner Brooke sends a police
expedition up the Kanowit River and captures Asun and most of the other leaders.
•Dec 16 1941 Japanese occupy Miri.
•1942-1945 Japanese occupation.
•August 14 1945 Japanese surrender.
•Sept 11 1945 Australian forces liberate Sarawak.
•1945-1946 Sarawak is put under Australia’s military administration.
•July 1 1946 Government passes a law that accepts Sarawak as a British Crown Colony.
•1946 Sarawak becomes British crown colony.
Issues faced by Indigenous
People in Sarawak
•Indigenous people who mainly involved in primitive economic activities are highly
dependent on the natural environment.

•Eg: farming, hunting and collecting natural resources.

•Therefore, whenever there is an environmental issue arose there will be the people at
the frontline that suffer the greatest negative impact.
Borneo Tropical Rain Forest
•As in many tropical areas around the world, Borneo’s rainforests are being cut
and degraded for timber, palm oil, pulp, rubber and minerals. The increase in
these activities is being matched by a growth in illegal wildlife trade, as cleared
forests provide easy access to more remote areas.
Deforestation
•The lure of illegal logging

•Scale of the problem

•Oil palm development

•In the wake of tropical deforestation

•Impacts on watersheds
Hydroelectric Dam
•Under Sarawak Corridor of Renewable Energy (SCORE), the government intends
to build at least twelve new hydro dams in Sarawak in order to provide 28,000 MW
of electricity for a yet-to-be-determined industrial complex in Sarawak.

•"The ecological consequences of the new dams would be disastrous. River and
forest landscapes which exist nowhere else in the world apart from Borneo would
be destroyed for ever, and the animal and plant world would be threatened. Apart
from that, dams cause the emission of large quantities of greenhouse gases, which
fuel climate change even further."

•A Switzerland-based NGO, the Bruno Manser Fund is leading a campaigning

against the SCORE initiative in coordination with a coalition of NGOs from around
the world.
For instance, just one of the proposed dams--the 1000 MW Baram dam--would drown
approximately 412 km2 (41200 hectares) of rainforest and 26 indigenous villages
along with it. That will result in the displacement of up to 20,000 people.
NCR Land issues
•Throughout the years, the customary lands of the Indigenous Peoples have been
unjustly grabbed and their resources thereon destroyed deceptively in the name of
development and poverty eradication through destructive projects and activities such
as loggings, oil palm and tree plantations, mega-dams, quarrying and the
establishment of large polluting industries like aluminium smelter plant and coal fire
power plants.
•The NCR of the Indigenous Peoples over their customary lands have also been
arbitrarily extinguished and gazetted as National Parks and Nature Reserves. The
NCR Perimeter Surveys undertaken by the Sarawak Government had also further
subverted and deprived the Indigenous Peoples of more of their customary land as the
said survey had been deliberately confined or restricted only to pockets of areas
cleared before 1st January, 1958.
•The Indigenous Peoples of Sabah and Sarawak have sought redress through the
judicial process and had successfully obtained landmark decisions through the
Courts in which the Courts have found and held that NCR land is not only
restricted to the Iban terms of Temuda(cleared cultivated land) but also extends to
the pulau galau (reserved forest areas) and pemakai menoa (communal territory)
which is consistent with the natives’ customs or adat. Currently there are more
than 300 NCR cases pending in the Courts.
•However, the Sarawak State Government continues to ignore these
landmark Courts decisions by continuing to arbitrarily grant logging
licences, licences for planted forests and provisional leases for oil
palm plantations over the NCR lands within the antara menoa or
pemakai menoa of the Indigenous Peoples.
Numpang Anak Suntai and 13 others v Quality Concrete Sdn Bhd and 5 others

•The suit was filed by Numpang Anak Suntai and 14 others who represented 278 Iban
families in areas in Sebangan and Sebuyau of Simunjan district. They had sued the
government and Quality Concrete Sdn Bhd and Royal Billion Sdn Bhd which had
been given a licence to extract timber from 3,305 hectares of forest, which the Ibans
claimed to be their native customary rights (NCR) land.

•Quality Concrete Sdn Bhd is owned by Rasiah Mahmud, the sister of former chief
minister Abdul Taib. The High Court had in May 2012 declared that the Iban families
had native customary rights over the said forest.
The Struggle of the Indigenous People in Sarawak
Lack of Political Will
•In October 2013, Malaysia underwent its 2nd Cycle of the Universal Periodic
Review (UPR) at the United Nations. The UPR is a process which involves a
review of the human rights records of all 193 UN Member States. It provides an
opportunity for all States to declare what actions they have taken to improve the
human rights situations in their countries.

•In an appalling response to the rights of Malaysia’s indigenous communities, the

Malaysian Government has rejected the following recommendations made by the
Governments of Denmark, Finland, New Zealand, Norway, Sweden and
Switzerland.
Rejected recommendations:

•Allow for the visit of the UN Special Rapporteur on the rights of indigenous peoples (Denmark);

•Ensure that laws on indigenous peoples as well as their implementation comply with the Declaration on the Rights
of Indigenous Peoples (Switzerland);

•Ensure the rights of indigenous peoples and local forest dependent peoples in law and practice, in particular
regarding their right to traditional lands, territories and resources (Norway);

•Establish an independent National Commission on Indigenous Peoples and ensure that laws, policies and their
implementations are in accordance with the United Nations Declaration on the Rights of Indigenous Peoples
(Sweden);

•Indigenous communities in have long fought illegal logging in Malaysia.

•Hundreds of indigenous people are taking the Malaysian Government to court for encroaching on their native
lands.

•Establish an independent body to investigate disputes over land, territories and resources (New Zealand);
Other issues
•Undue influence for conversion to other religions

•Sexual Assault

•Corruption
 Commentary
•"Indigenous peoples in Malaysia are marginalised socio-economically and culturally.
Politically the natives of Sabah and Sarawak as a whole are in a relatively better position
compared to the Orang Asli of Peninsular Malaysia. However, they share a common
problem of being dispossessed from their land, which had led to an erosion of their
cultural identity. The erosion of their cultural identity is being exacerbated by an
inappropriate education system, which fails to accommodate their beliefs and practices and
in some cases by efforts to convert them to other religions. Additional factors include the
effects of mainstream development as well as policy such as that for the integration and
assimilation specifically targeting the Orang Asli in Peninsular Malaysia. This policy
imposition, without consultation with the affected peoples, contains values that run counter
to their worldviews, lifestyles, cultural and spiritual traditions." (p. 152 SUARAM’S 1998
report on indigenous peoples and their plight).
 General strategies to be adopted for
maximizing the chances of obtaining
reparations and ensuring its effectiveness
• Use of existing law as foundation of reparatory claims

• Use of both domestic and international law as legal bases of a

claim

• Use of ideological argument for e.g. element of fairness

• Use of the ‘ahistorical relativism’ argument for e.g. serious past

practices resulting in the violation of fundamental rights of
indigenous peoples have ongoing effects representing the
rationale for claiming remedies

• Adoption of an eclectic approach combining the different

remedies potentially available for e.g. negotiations rather than
recourse to litigation
• Relying on rules of human rights or other principles of law
generally accepted in the international and/or domestic legal
order i.e. linking reparatory claim to consolidated rules of law
particularly human rights law

• Involving the victims in the process of reparation

• Involving the national and international society as a way for

putting pressure on authorities responsible for granting reparation

• Fostering a new social conscience as to the need to make amends

for the mistakes of the past
CONCLUSION
•Professor Francioni said:

“It would be foolish to think that international law grants indigenous peoples
a complete and unconditional right to reparations for injuries suffered in the
past … There are still jurisdictional hurdles and substantive legal barriers that
may impeded the recognition or the exercise of this right at the level of
international law”

•A growing number of governments are today developing more or less

advanced policies of reparation in favour of the indigenous communities in
order to make amends for a shameful past

•“The methods available will depend on a country’s constitutional and

economic structure and on the strength of the indigenous rights within it.” –
Professor Iorns Magallenes
• Indigenous people, whether we like it or not, are one of the vulnerable groups in the
society. They too, suffer a series of oppression and marginalize through out the history
of mankind, similar to those woman suppressed by patriarchy, labour oppressed by the
capitalist and the people governed by the dictatorship.

• Although justice, freedom and democracy has been the mainstream ideology in the
world that supposed to uplift the rights and the livings of the Indigenous people,
however that will remain a fantasy if there is a lack of political will from the state to
ratify the matter.

• Some countries had taken steps for reparation in order to restore the dignity of the
indigenous people. However, lets not forget that there are still indigenous people in
some part of world are still suffering as the victim in the history as well as in this
modern world.
• We should speak from our conscience and search for the truth and justice for the
indigenous people that has been absence through out the history of mankind.
Lets not allow the history repeat in today’s world.

To see what was unfair in the past as a matter of course, or to treat the pain of
other ethnic peoples as an unavoidable part of human development, this is the
first mindset that we, standing here today, resolve to change and overturn
• To become a so-called silent majority when there are having group of people
that are still marginalize and oppressed by the state will only render ourselves
as an accomplice to the state machinery.

• Hence, every member of the society should pressure the government, to ensure
that the government to have the political will to take practical steps for apology,
acknowledgement and reparation.

• Let us work towards the reparation, for a shared existence and shared
prosperity, and a new future for the mankind.
THE END