We applaud the United Nations’ passage of the Declaration on the Rights of Indigenous Peoples and congratulate the many, many indigenous elders and activists who collaborated over decades to enshrine these fundamental human rights in international law. However, in the spirit of dialogue and debate we offer these thoughts on the removal of the words “sacred places” from the document, in final negotiations behind closed doors as the declaration moved toward the General Assembly in 2006.

Throughout the 1990s, as indigenous people around the world worked to build support for the Draft Declaration on the Rights of Indigenous Peoples, sacred places were explicitly mentioned. In 1994, the draft stated (bold text for emphasis):

PART III

Article 12

Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artifacts, designs, ceremonies, technologies and visual and performing arts and literature, as well as the right to the restitution of cultural, intellectual, religious and spiritual property taken without their free and informed consent or in violation of their laws, traditions and customs.

Article 13

Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of ceremonial objects; and the right to the repatriation of human remains.

States shall take effective measures, in conjunction with the indigenous peoples concerned, to ensure that indigenous sacred places, including burial sites, be preserved, respected and protected.

In the 2006-7 version that was approved this week by the General Assembly (with adjusted Article numbering in which the old Article 12 became 11 and 13 became 12), this very important language was changed:

PART III

Article 11

1. Indigenous peoples have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.

2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

Article 12

1. Indigenous peoples have the right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains.

2. States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.

Our attempts to discover why the words “sacred places” were removed in what appears to have been a small committee meeting in 2006 have so far failed to bear fruit. States probably objected to a fearful concept that seems to threaten economic development and private property rights, and a committee of indigenous negotiators may have compromised to undercut resistance as a promised vote by the General Assembly finally was approaching.

The Declaration was tabled and did not come to a vote in November 2006, and thus the compromise may not have been necessary. It is definitely unfortunate. Including the specific mention of “sacred places” would have been a huge, historic step forward — indeed for twenty years the draft declaration included the requirement that states cooperate with indigenous people to ensure respect for and protection of sacred places. This language reflected a consensus built and sustained over many years.

We are left with “archaeological and historical sites” and “religious and cultural sites” — terms that governments and modern societies do not understand in the indigenous context and hence usually reduce to human built structures, places where there is archaeological evidence, material sites related to the human past. This omission can effectively and conveniently eliminate sacred natural sites, where an undisturbed geophysical formation is understood to be sacred, imbued with power and spirit, experienced on a level beyond the physical — a mountain, a spring, a tree or grove, a lake, a river, a rock — “sacred places.”

Perhaps it is arrogant for humans to try to enshrine “rights” to sacred places, when the proper relationship is one of voluntary, deeply felt “responsibility.” But in an instrument of international policy, sacred places could have used explicit protection.

With the Australian Federal Supreme Court preparing to hear a case on the legality of the McArthur River mine expansion and river diversion plan, a group of 50 men, women and children boarded a bus in Boroloola and traveled nearly 1000 kilometers to Darwin, capital of the Northern Territory. They went to observe the court proceedings and pray, sing and dance in front of the Parliament Building. When they first arrived they burnt eucalyptus leaves and moved around the area smudging the buildings out of respect for an elder who had recently passed away. The smoke billowed around the group purifying all of the places where the elder had been during his last visit.

Australia’s booming economy depends in large part on resource extraction, and the powerful mining industry flaunts its economic and political clout with the current federal and Northern Territory governments. In April 2007, the Aboriginal people of Boroloola won a court case charging that the McArthur River Mine (MRM) permits were illegally issued by the NT government. The Territory Parliament then hurriedly passed a new law within a week that overturned the court ruling and allowed the mine to continue operating.

Barbara McCarthy, an indigenous member of the NT Parliament representing Arnhem Land, opposed the hasty legislation. She told me, “We did everything possible in the legal system and when we won the goal posts were moved again. It’s wrong. I’m sorry — it’s wrong.”

The community awaits a decision by the Supreme Court while MRM is continuing with the diversion of the river. A finding in favor of the plaintiffs will mean that Xstrata (the parent company of MRM) will not be able to proceed with the mine expansion plan and the diversion of the river. An independent monitor was recently assigned to review all environmental assessments of the mine and to evaluate the impact of the diversion. However, the monitor will be paid by Xstrata, diminishing its “independence” from the viewpoint of the Borroloola community members.

One remarkable and odd thing about our visit in Darwin was that the regional newspaper, The Northern Territory News, rather than running a story on the Aboriginal delegation protesting the mine expansion, ran a story about our film crew documenting the Aboriginal story.

Check out our new three-minute film clip: The Road to Darwin.

Every August, two thousand people visit northern Australia’s Gove Peninsula in Arnhem Land to attend the Garma Festival, an international celebration of the Aboriginal culture that is still strong around Yirkalla. In August, we travelled to Garma to interview indigenous leaders and film the dances that take place at sunset every evening.

The evening dance is known as the bunggul and the place the dances are performed is remembered as the origin place of the digeridoo, known in the local Yolnu language as the yidaki. In this short film clip you will hear a song to the Mimih Spirits, sung by Crusoe Kurddal, one of the lead actors in the film “Ten Canoes.” You’ll see the Red Flag Dance that recalls the Macassan seafarers’ visits to Australia, and you’ll meet yidaki master Djalu and his wife Darngul.

To visit Arnhem Land in the Northern Territory, outsiders need a permit. This is Aboriginal land, one of the few places left where native people control access to land they have inhabited for millenia. Australian legislators have been trying to abolish the permit system and undermine Aboriginal Land Rights. The federal government also recently declared the equivalent of martial law in the Northern Territory under the pretense of trying to stop child abuse, which the government claims is higher in Aboriginal communities than elsewhere. Local observers point out that rural communities share this problem the world over and theorize that this is a pre-election ploy by conservative Prime Minister John Howard, who is trying to rally his base in the runup to national elections. In any event, Aboriginal leaders are fighting these measures, and when they gathered in August these government actions were at the top of their agenda.

Manduwuy Yunupingu, leader of the band Yothu Yindi, opened the Garma Festival with these observations: “This government is a worrying government. It worries about itself. The corporate sponsors worry. In the Northern Territory we are about to be dispossessed of everything we have left from the last dispossession — dispossessed of what is left — of land, lives, children, health, education. The name is ‘mainstreaming.’ The name is ‘assimilation.’ Some of us are not enjoying this festival because we are worrying ourselves sick about the Northern Territory government’s agenda. We must stand up and fight the sickness of this government setting out to take away what is rightfully ours. It’s going to be bigger than anything in the past. Maybe this is the final, final. We represent the past of Australia. We’ve lived here for thousands and thousands of years. We have survived all sorts of droughts, weather, wars. We never set out to kill ourselves and wipe ourselves out. We set out to take care of this country. Aboriginal people want to survive, so we can share land and knowledge, so your family and mine can live together and build a better world. It works with dialogue. You must talk and reach settlement, so life continues in balance.”

In that spirit we offer this short film clip of the 2007 Garma Festival.