6th Session: the Expert Mechanism on the Rights of Indigenous Peoples

Thank you Madam Chair for the opportunity to be part of this Interactive Panel on the implementation of the UN Declaration on the Rights of Indigenous Peoples at this, the Sixth Session on the Expert Panel on the Rights of Indigenous Peoples.

I believe Interactive Panels provide an opportunity for Mechanisms such as the Permanent Forum and EMRIP to role model to other parts of the United Nations family the best practice for engagement with, and participation of, Indigenous peoples in matters that affect us.

My name is Mick Gooda and my people are the Gangulu from the Dawson Valley in Central Queensland Australia. I pay my respects to the traditional owners of the land upon which this place is built and to all of my brothers and sisters in this room today.

I currently occupy the position of the Aboriginal and Torres Strait Islander Social Justice Commissioner. 2013 marks 20 years since this position was created by the Australian Parliament in response to the findings of the Royal Commission into Aboriginal Deaths in Custody and the extreme social and economic disadvantage faced by Indigenous Australians.

The Social Justice Commissioner is a statutory appointed position which means that my line of responsibility is to the Australian Parliament rather than the Australian Government and as such I enjoy a high degree of independence. This, together with my ability to report directly to the Australian Parliament annually, ensures that the exercise and enjoyment of human rights by Indigenous people in Australia is promoted, advocated and advanced at every opportunity.

My office is sits within the Australian Human Rights Commission, Australia's National Human Rights Institution (NHRI) and my esteemed colleague, the Special Rapporteur has specifically acknowledged that the position is ‘an exceptional model for advancing the recognition and protection of rights of Indigenous peoples'.[1]

The Australian Human Rights Commission currently enjoys status 'A' accreditation with the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights which means we are fully compliant with the Paris Principles.

Madam Chair the first of these principles relates to the status of national institutions and states that:

'A national institution shall be vested with competence to promote and protect human rights'[2]

In adopting these Principles back in 1994, the General Assembly stated that it is:

‘Convinced of the significant role that institutions at the national level can play in promoting and protecting human rights and fundamental freedoms and in developing and enhancing public awareness of those rights and freedoms.’[3]

Given that one of my duties is to monitor and promote the exercise and enjoyment of human rights by Aboriginal and Torres Strait Islander peoples, I have made the implementation of the UN Declaration on the Rights of Indigenous Peoples a priority for the time I will spend in this position. I have done this because action to implement international human rights commitments and obligations into national laws, policies and programs for the benefit of Indigenous peoples remains a challenge in Australia.

I believe that the Declaration provides a roadmap to address that challenge.

This position being placed within a status 'A' NHRI ensures the Commission maintains an extensive work program on Indigenous rights at all times.

A foundational belief enunciated in the preamble of the Declaration refers to the prohibitive impact that the denial of Indigenous peoples’ rights has on meaningful advancements in State-Indigenous relations.[4]

NHRIs, in this sense, provide a valuable framework for forging better communication between the State and voices of Indigenous communities around Australia.

NHRIs are uniquely placed to operate as a conduit between the international human rights standards and the on-the-ground reality experienced by Indigenous peoples and are uniquely placed to advocate and negotiate on behalf of the most vulnerable in our communities, particularly where Indigenous representative structures and bodies have not been established.

Consequently, NHRIs have a key strategic role to play in implementing the standards contained in the Declaration.

Article 38 of the Declaration imposes obligations on States to take appropriate national measures to achieve the ends of the Declaration. 
Article 39 provides that Indigenous peoples have a right to technical assistance from States for the enjoyment of their human rights and Article 40 details a right to just and fair procedures for human rights disputes.

These Articles reflect the key roles that NHRIs can play when working with States and Indigenous peoples to protect and promote Indigenous rights through advocacy, complaint handling, educational activities, policy analysis and monitoring of a State’s human rights performance.

This role for NHRIs has previously been noted by the Human Rights Council,[5] the UN Permanent Forum on Indigenous Issues,[6]   the Expert Mechanism on the Rights of Indigenous Peoples[7] and the Special Rapporteur on the Rights of Indigenous Peoples.[8]

A survey in 2009 conducted by the Asia Pacific Forum (APF), the peak body for NHRIs in the Asia Pacific region of which the Commission is a member, identified a strong desire from member NHRIs for technical cooperation and for educational tools to assist members to be better understand and take action to activate the Declaration at the national level.

While there was great interest in the survey, there was limited knowledge about the Declaration among NHRIs.

Recognising the important role of NHRIs in promoting the Declaration, the APF, in partnership with the Office of the High Commissioner for Human Rights, is producing a training toolkit for NHRIs focusing on the rights of Indigenous peoples.

The Australian Human Rights Commission was contracted by the APF to draft this guide and I am proud of our involvement. This guide will be published within the next month. 

The Australian Human Rights Commission is currently working in partnership with the National Congress of Australia’s First Peoples, the national representative body for Indigenous peoples in Australia, to develop a national strategy to give effect to the Declaration.

This strategy will involve a series of Declaration Dialogues with Indigenous communities, the State, NGOs and the business sector to discuss how together, we can make the Declaration work to protect the rights of Indigenous peoples.

These discussions will be based on the foundational principles of self-determination; participation in decision making and free, prior and informed consent; respect for and protection of culture; and equality and non-discrimination.
 
The AHRC, again in partnership with the National Congress of Australia’s First Peoples, has produced a suite of community educational materials.

These materials have been designed specifically to assist with increasing the knowledge and understanding of Indigenous communities and people about their rights and the Declaration.

Discussions between States and Indigenous peoples about the application of the core principles of the Declaration are critical if we are to overcome barriers to implementation.

It is pleasing to note that the Australian Government has now committed to working with the Australian Human Rights Commission and the National Congress of Australia’s First Peoples to give effect to the Declaration.

Earlier this year at the 12th Session of the UN Permanent Forum on the Rights of Indigenous Peoples, the Australian Government and the Australian Human Rights Commission delivered a joint statement on the implementation of the Declaration within Australia.

The joint statement also received support from the National Congress of Australia’s First Peoples.
In that statement, the Australian Government noted that:

 “We are working with the Australian Human Rights Commission and the National Congress of Australia’s First Peoples to increase awareness of, and encourage dialogue about, the Declaration in policy development, program implementation and service delivery as a way to embed the Declaration in how business is done.’[9]

The Government has since established an internal working group whose mandate is to “go beyond the rhetoric and work towards considering the purpose behind the principles in the Declaration”.

Similarly, the Commission has also been in discussion with the Australian representatives of the UN Global Compact in relation to the rights of Indigenous peoples.  In particular this engagement has centred on the exposure draft of the Business Reference Guide on the Declaration which was released for comment in December 2012.

Our engagement is predicated on the role the business sector can play in respecting and advancing the rights of Indigenous peoples. The Commission is playing a brokering role by providing a safe place for wider engagement between Aboriginal and Torres Strait Islander peoples and the business sector. For example, KPMG, the company leading the development of this Guide in Australia has agreed to facilitate a meeting of the business sector as part of the Declaration Dialogues that will take place over the next 18 months.

Madam Chair, I am of the view that the Declaration can be used to guide the relationships that exist within and between Indigenous peoples.  For instance, in my 2011 Social Justice Report I wrote about the effect of ‘lateral violence’ in our communities, where Indigenous peoples take on the behaviours of the colonisers leading to a high level of abuse, such as harassment, bullying and gossiping which in many cases graduates to actual physical violence.

When I first raised the concept of lateral violence in this role, I was concerned that a frank airing of this issue might cause me some grief. I was prepared that some would accuse me of airing our dirty laundry in public. There were already enough bad news stories about Aboriginal and Torres Strait Islander peoples in the public domain. The last thing we needed was to add lateral violence to the litany of dysfunctions associated with Aboriginal and Torres Strait Islander communities.

I had to think long and hard about being open and honest about the damage that lateral violence does in our communities; am I contributing to the further demonisation of our people?

While this is a view that some people may take, the damage and impact caused by not doing anything about lateral violence is, in my view, far greater than the risk of speaking out.

I believe lateral violence is grounded in the historical oppression and colonisation that continues to thrive in our current environment because it feeds on powerlessness, identity conflict, negative stereotypes and trauma.

The Special Rapporteur argues that the Indigenous human rights movement is underpinned by the acknowledgement that:

[H]istorical phenomena grounded in racially-discriminatory attitudes are not just blemishes of the past but rather translate into current inequities.[10]

With this in mind, it is useful to view the Declaration as a remedial instrument – created in response to discrimination and denial of human rights – and it can be used to address the contemporary effects of oppression and colonisation within Indigenous communities.

In particular, I believe that Aboriginal and Torres Strait Islander peoples can use the Declaration in developing healthy, respectful and inclusive relationships, be they within our community, our organisations or our families.

Conclusion

Madam Chair, I gave a commitment at the beginning of my term as the Aboriginal and Torres Strait Islander Social Justice Commissioner that my priorities would be underpinned by the Declaration.

While we are still in the early stages of the Declaration Dialogue strategy, I am committed to ensuring that we in Australia have framed the conversation on the implementation of the Declaration in such a way that Aboriginal and Torres Strait Islander people are able to fully realise, exercise and enjoy the human rights and fundamental freedoms as set out in the Declaration and in turn effect positive change within our communities.

The Declaration will remain a priority for the rest of my term as the Aboriginal and Torres Strait Islander Social Justice Commissioner.

Thank you.