Removal of Indigenous Communities in Western Australia: An International Human Rights Violation

“I have no motive, my friends, to deceive you. I am sincerely desirous to promote your welfare. Listen to me, therefore, while I tell you that you cannot remain where you now are. . . . You have but one remedy within your reach. And that is, to remove to the West and join your countrymen, who are already established there. And the sooner you do this the sooner you will commence your career of improvement and prosperity.” –Message from Andrew Jackson to the Cherokee Nation before authorizing the Trail of Tears[1]

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Introduction: Removal in Western Australia

On November 11, 2014, The Australian published an article announcing West Australian Premier Colin Barnett had flagged for closure many remote communities in Western Australia.[2] Barnett claimed that these closures were in response to a report in The Weekend Australian that “published figures showing the rate of suicide among Aboriginal people in [the area] was the highest in the world.”[3] Barnett also attempted to justify this announcement by explaining that Australia’s Federal Government had recently transferred financial responsibility for aboriginal communities to the West Australian State Government (“State” or “Western Australia”). This transfer made the State financially responsible for providing “essential and municipal services to 274 remote communities in return for a [one-time] $90 million” subsidy (the projected cost to the State was actually set at $6 billion over 10 years).[4]

However, this recent threat of removal is not an isolated occurrence.[5] My purpose in this post is to highlight current threats of removal in the framework of the 2011 closure of Oombulgurri in order to increase general awareness of human rights violations against indigenous peoples. Western Australia’s recent threats to close indigenous communities will be a tragic international human rights violation unless national and international steps are taken to prevent unlawful removal and to learn from the 2011 Oombulgurri removal.

International Norms and Standards

First, it is necessary to establish a general foundation of some of the applicable national and international standards and norms for the treatment of indigenous populations.

United Nations Declaration on the Rights of Indigenous Peoples[6]

Article 10 of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) states: “Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.”[7]

ILO 169[8] & The Duty to Consult

International Labour Organization Convention Number 169 (“ILO 169”), like UNDRIP, “requires States to consult with indigenous peoples in good faith, with the objective of achieving their agreement or consent on the aspects of management schemes or projects that affect them, and calls upon States to carry out consultations with indigenous communities.”[9] In fact, “‘the spirit of consultation and participation constitutes the cornerstone of Convention No. 169 on which all its provisions are based.’”[10]

The duty to consult “is aimed at reversing the historical pattern of exclusion from decision-making, in order to avoid the future imposition of important decisions on indigenous peoples, and to allow them to flourish as distinct communities on lands to which their cultures remain attached.”[11]

Removal in Oombulgurri

Oombulgurri was a small town located on the banks of the Forrest River in the eastern Kimberley (Kimberly is one of nine regions in Western Australia).[12] In 2011, the citizens of the Oombulgurri Aboriginal community in eastern Kimberley were “evicted from their homes after the government of Western Australia deemed the community ‘unviable.”[13] This decision by the State government was made over the protests of the community members.[14] Despite many refusing to leave, the State closed the school, police station, health clinic, and shut off power and water.[15] As these vital facilities were closed, people were left with no other choice but to relocate.[16]

In a 2014 interview, Ms. Cissy Gore-Birch, the Balanggarra Aboriginal Corporation chairperson, described many of the effects of the Oombulgurri closure:

When the community of Oombulgurri was moved on, many slept in rundown buildings till they were moved on. Families slept in the public toilets. . . . [M]any moved on to the nearby “marshes” and became known as the Marsh People, sleeping in the open. [M]any are now homeless in and around Wyndham, and others itinerant and homeless in and around other Kimberley towns . . . . In closing down the town and moving on the residents, they dismissed their connection to the land, they disregarded their identity, their history, who they are and where they are from.[17]

As part of her particularly moving account, Gore-Birch further described:

[W]e have had two suicides of our former residents in the Wyndham area alone recently. One was a 12 year old girl. The other was of one of our leaders in our community . . . . He was the last person standing at Oombulgurri, not wanting to move to Wyndham. He was a proud man, proud of his house and when finally he was brought to Wyndham he became so depressed he turned to alcohol and finally took his own life.[18] 

The implications of Western Australia’s proposed closure plans are tremendous. The tragedies and reverberating trauma of Oombulgurri would be magnified to unimaginable scales if the same removal was to occur in 150 other indigenous communities throughout WA. As Tammy Solonec implored, “the demolition of Oombulgurri must never be repeated in another community.”[19]

Conclusion

If the current situation in Western Australia is allowed to unfold uninhibited by the international community, it will be one more dark and terrible stain in the world history book about the treatment of indigenous populations.[20] Direct or indirect, removal must be a last resort after all other efforts have been exhausted. Throughout the process, the government must also consult with affected indigenous communities. Western Australia must divert from the path on which it is currently set. Otherwise, in the very near future, Australia will be responsible for perpetuating another “lifelong legacy of pain and suffering.”[21]

[1] Ehle, Trail of Tears 275–278 (1988) (quoting the Allegheny Democrat, March 16, 1835).

[2] WA Premier Colin Barnett Flags Closing Remote Sites, The Australian (Nov. 11, 2014),

http://www.theaustralian.com.au/national-affairs/state-politics/wa-premier-colin-barnett-flags-closing-remote-sites/story-e6frgczx-1227118746328 [hereinafter Premier Flags Closing Remote Sites].

[3] Id. The report highlighted the death of an 11-year-old boy, Peter Little, who had completed suicide as well as previous suicides in remote, aboriginal communities. Id.

[4] Id.

[5] Tragically, even the recent loss of the Oombulgurri is not a new story. The 1960s in Australia also saw the forced removal of masses of indigenous peoples “left to flounder on the outskirts of outback towns when they were kicked off pastoral lands.” Marie McInerney, Australia’s Remote Indigenous Communities Fear Closure, BBC News (Mar. 12, 2015), http://www.bbc.com/news/world-australia-31846031. “[D]islocation is an experience shared by many Indigenous Australians who were forced off their land, last century, either because of changes in government policy or lack of employment.” Id. And, as Derby Aboriginal elder Lorna Hudson describes, “[t]hat’s how people lost their culture . . . . It put us in a different environment, away from our country.” Id.

[6] Declaration on the Rights of Indigenous Peoples, G.A. Res. 61, U.N. Doc. A/RES/61/295 (Oct. 2, 2007) [hereinafter UNDRIP].

[7] Id. art. 10.

[8] International Labour Organization, Convention Concerning Indigenous and Tribal Peoples in Independent Countries, No. 169 (1989) [hereinafter ILO 169].

[9] Special Rapporteur on the Rights of Indigenous Peoples, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, U.N. Doc. A/HRC/12/34 (July 15, 2009) (by James Anaya) [hereinafter Anaya].

[10] Id.

[11] Id.

[12] Tammy Solonec, The Trauma of Oombulgurri’s Demolition Will Be Repeated Across Western Australia, Australia News (Nov. 26, 2014), http://www.theguardian.com/commentisfree/2014/nov/27/the-trauma-of-oombulgurris-demolition-will-be-repeated-across-western-australia.

[13] Oombulgurri Demolitions: Your Questions Answered, Amnesty Int’l (Sept. 17, 2014), http://www.amnesty.org.au/indigenous-rights/comments/35560/ [hereinafter Oombulgurri Demolitions]. But see Solonec, supra note 12 (“[T]here is nothing more “unviable” for Aboriginal people than to be forcibly evicted from their traditional lands . . . . To be disconnected from land and culture, often made homeless, and forced deeper into poverty, substance abuse, violence, lack of education, unemployment and ill health – that’s what it means to be “unviable”).

[14] Oombulgurri Demolitions, supra note 13.

[15] Id.

[16] McInerney, supra note 5. It is important to note that many of the same jumbled reasons currently cited for potential closures were also listed as reasons for the Oombulgurri community closure. Justifications included “high rates of domestic violence, child neglect and sexual and alcohol abuse” and similar financially unviable arguments. Premier Flags Closing Remote Sites, supra note 1. These justifications were couched in stated goals of saving the communities from a spate of suicides, sexual assaults, and alcoholism problems.  See Oombulgurri Demolitions, supra note 13. Furthermore, The Guardian reported,

During 2005 and 2006 four people killed themselves; a sexual assault taskforce and a Coronial Inquest went on to highlight incidents of domestic violence, suicide, child sexual abuse and alcoholism. Three individuals from the community were convicted of offences.

While the taskforce and inquest unravelled [sic] an undeniably grave social crisis, the coroner did not make a recommendation to close the town. Nevertheless, the Western Australian government did just that, and has begun demolishing Oombulgurri.

Solonec, supra note 12.

Although not the focus of this paper, it is important to point out the danger of an approach that heavy-handedly “solves” community problems by forcefully closing the community despite pleas from the residents. As Amnesty International stated, “the wholesale eviction of people from their homes is not the answer, and has only caused further trauma. . . . Action was certainly needed to address the serious social problems in the community, but this should take the form of better community safety, health, employment, and education programs.”  Oombulgurri Demolitions, supra note 13.

[17] See Gerry Georgatos, Cissy Gore-Birch Says Mining Diamonds Could Be Why Oombulgurri’s Residents Were Evicted, The Stringer (Sept. 27, 2014), http://thestringer.com.au/cissy-gore-birch-says-mining-diamonds-could-be-why-oombulgarris-residents-were-evicted-8604#.VmCQfHarTcs. Ms. Cissy Gore-Birch stated, “‘I am from Oombulgurri and there was no reason for them to move our people on. They may demolish our homes but we will return there whether our houses remain there or not. It is our Country, our land, our place and they cannot take it away from us.’” Id.

[18] Id.

[19] Solonec, supra note 12.

[20] Fred Chaney, the former Federal Liberal Aboriginal Affairs Minister, told an Australian radio station that any community removals needed to be very carefully prepared if necessary; otherwise, “‘we’ll get the same disaster as we got in the 1960s when there was a wholesale move of Aboriginal people off the cattle stations . . . . [T]he results were absolutely horrendous.” Premier Colin Barnett Says Remote WA Communities Face Closure due to Commonwealth Funding Cuts, Perth Now (Nov. 12, 2014), http://www.perthnow.com.au/news/western-australia/premier-colin-barnett-says-remote-wa-communities-face-closure-due-to-commonwealth-funding-cuts/news-story/12ea7c2a161a1e673534d6e8bbf33832. Chaney has repeatedly warned that “closures could be ‘catastrophic’ if Western Australia repeats the[se] mistakes.” McInerney, supra note 5.

[21] Gillard Delivers Apology to Victims of Forced Adoption, ABC News (Mar. 21, 2013), http://www.abc.net.au/news/2013-03-21/gillard-delivers-apology-to-victims-of-forced-adoption/4585972.