Expert Mechanism on the rights of Indigenous peoples
Statement by Tom Calma, Australian Human Rights Commission.
Expert Mechanism on the rights of Indigenous peoples, United Nations, Geneva.
1 October 2008.
Agenda Item 3
- photo by Brian Wyatt
Thank you Mr Chairman.
I am speaking in my capacity as the Aboriginal and Torres Strait Islander Social Justice Commissioner of the Australian Human Rights Commission. The Commission is Australia’s National Human Rights Institution.
Mr Chairman, I want to talk about the important role of national human rights institutions in protecting the rights of Indigenous peoples, and the potential for partnerships between national institutions and this Expert Mechanism.
Our Commission is established in compliance with the Paris ‘Principles Relating to the Status and Functions of National Institutions for the Promotion and Protection of Human Rights’ in accordance with General Assembly Resolution 48/134 of 1993. This sets out the minimum standards for national human rights institutions to be considered credible and independent of government control.
National institutions that comply with the Paris Principles provide a vital link between the international system and domestic legal frameworks. They are charged with the responsibility of monitoring at the national level compliance with universal human rights standards, including in relation to Indigenous peoples. Many national institutions conduct significant research activities, as well as an investigative role in identifying and remedying breaches of human rights.
National Institutions regularly contribute to studies and research conducted by the special procedures of the UN. The importance of their role has been recognised by the UN Human Rights Council – for example, national institutions have a key role to play in the Universal Periodic Review process and are regularly consulted by treaty committees in the course of considering periodic reports.
I note that Human Rights Council Resolution 9/L.17 requests the Expert Mechanism to seek input from national institutions (para 6) in its operations.
The Australian Human Rights Commission is relatively unique among national institutions as it has a dedicated Indigenous Social Justice Commissioner position charged with responsibilities to:
Provide two reports annually that are released to Australia’s federal Parliament on the status of enjoyment of human rights by Indigenous Australians, conduct research, and undertake educational and awareness raising activities to promote understanding of Indigenous human rights, and analyse proposed laws for their compliance with Indigenous peoples’ human rights.
As Commissioner, I also have powers to intervene in court cases to put an Indigenous human rights perspective. In recent years, our Commission has completed significant research into issues facing Aboriginal and Torres Strait Islander communities (for example: implementing a human rights based approach to addressing Indigenous health inequality; promoting economic development through recognition of Indigenous peoples’ traditional land tenure systems; climate change and Indigenous peoples; community based solutions to addressing family violence and child abuse in our communities; ensuring effective representation of Indigenous peoples in government policy making processes and service delivery; and identifying options to ensure the adequate protection of Indigenous peoples’ human rights in our national legal system and Constitution).
The Permanent Forum has acknowledged the important role of National Human Rights Institutions in ensuring the protection of Indigenous rights at the domestic level. At paragraph 145 of their latest report they recommend that:
national human rights institutions and other relevant national and regional bodies, ... promote the rights of indigenous peoples and monitor the implementation of the United Nations Declaration on the Rights of Indigenous Peoples, and ensure that the international standards on indigenous peoples’ rights are translated into national laws.
The UN Declaration of the Rights of Indigenous Peoples also elaborates a clear role for national institutions. Of most relevance are articles 38 (relating to the taking of appropriate measures to implement the Declaration) and Article 40 (which relates to access to conflict resolution procedures and the provision of effective remedies).
There are also clear links in the objectives and Program of Action for the Second International Decade of the World's Indigenous Peoples but I won’t repeat those provisions here.
Mr Chairman, there is great potential for this Mechanism to create partnerships with national institutions in order to draw on the extensive research and experience of these organisations globally, as well as to extend further the activities that national institutions undertake to promote and protect the rights of Indigenous peoples.
For its part, the Australian Human Rights Commission would like to express to this Mechanism its commitment to work with you. We intend to work in conjunction with our colleagues in the Asia Pacific Forum of National Human Rights Institutions to ensure that at each session you will receive the outcomes of research, consultations and other activities that have been undertaken by national institutions across the Asia-Pacific region over the previous year, as well as research that may have been undertaken in relation to the issues that you have identified for future work in upcoming sessions of the Expert Mechanism.
We would urge you to consider the role of national institutions so that we can address the implementation gap that exists between international standards and domestic legal frameworks.
Thank You Mr Chairman.
2nd International Decade Objectives
There is a role for national institutions in:
Promoting non-discrimination and inclusion of indigenous peoples in the design, implementation and evaluation of international, regional and national processes regarding laws, policies, resources, programmes and projects;
Promoting full and effective participation of indigenous peoples in decisions which directly or indirectly affect them;
Adopting targeted policies, programmes, projects and budgets for the development of indigenous peoples, including concrete benchmarks; and
Developing strong monitoring mechanisms and enhancing accountability at the national level, regarding the implementation of legal, policy and operational frameworks for the protection of indigenous peoples.
The Program of Action for the Second Decade also calls for the following directly in relation to national institutions:
55. It is recommended that Governments should support and broaden the mandate of existing national machineries for the promotion of equal rights and prevention of discrimination, so that they will include promotion of the rights of indigenous peoples...
