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EMRIP 2010 Item 4: United Nations Declaration on the Rights of Indigenous Peoples

Aboriginal and Torres Strait Islander Social Justice

Expert
Mechanism on the rights of Indigenous peoples

12 – 16 July 2010, Geneva

Statement by the
Aboriginal and Torres Strait
Islander Social Justice Commissioner
Mick Gooda
Australian
Human Rights Commission

Item 4: United Nations Declaration on the Rights of Indigenous Peoples

Thank you Mister Chair

I make this statement in my capacity as Aboriginal and Torres Strait Islander
Social Justice Commissioner on behalf of the Australian Human Rights Commission,
Australia’s National Human Rights Commission. 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.

National Human Rights Institutions play an important role as a conduit
between developments at the international level and domestic legal frameworks,
and will be crucial in working with our national governments and our Indigenous
communities to progress efforts to fully implement the UN Declaration on the
Rights of Indigenous Peoples (the Declaration). In particular, the right to
participate in decision-making can be assisted by broadening the scope of human
rights covered by National Human Rights Institutions to include the Declaration
on the Rights of Indigenous Peoples.

In my capacity as the Social Justice Commissioner, I am charged with
reporting to the Australian Parliament on the human rights issues facing
Aboriginal and Torres Strait Islander peoples. I also monitor domestic
compliance with human rights standards as they apply to Indigenous peoples.

My five year term as Social Justice Commissioner began in February this year
and I hope to work towards seeing an established framework to ensure the
protection of Aboriginal and Torres Strait Islander people’s human rights.
The overarching element of this framework is the full implementation of the
Declaration.

As an international instrument, the Declaration provides a blueprint for
Indigenous peoples and Governments around the world, based on the principles of
self-determination and participation, to respect the rights and roles of
Indigenous peoples within society. The rights in the Declaration are covered in
the seven core instruments under which States have legally binding obligations.
As such it forms the predominant source of international human rights law that
articulates Australia’s obligations for the promotion and protection of
Aboriginal and Torres Strait Islander peoples and elaborates on existing
international human rights norms and principles as they apply to indigenous
peoples.

Mister Chair

The Australian Government has committed to resetting the relationship between
the Government and Aboriginal and Torres Strait Islander peoples. We acknowledge
the efforts of the current government to lay the foundation upon which
Aboriginal and Torres Strait Islander peoples can increase their participation
in decision-making and effective engagement in Australian society. This
includes:

  • the Apology to the Stolen Generations in 2008
  • support for the establishment of the National Congress of Australia’s
    First Peoples, the National Healing Foundation, and the National Aboriginal and
    Torres Strait Islander Women’s Alliance
  • the largest investment of funding in Indigenous Health in Australia’s
    history, and the Government reversed its opposition for the Declaration on the
    Rights of Indigenous peoples.

The Commission welcomed the Australian
Government’s formal endorsement of the Declaration in April 2009. Since
that time the Declaration has become increasingly prominent in Australia’s
legal and policy landscape, with references to the Declaration being made in
parliament[1], parliamentary committee
reports[2], court
decisions[3] and in policies developed
by Indigenous NGOs[4].

However, the Australian Government have not yet made any concerted effort to
develop a national implementation strategy for the Declaration. Simply making a
statement of support for the Declaration will not ensure the protection and
exercise of Indigenous people’s human rights.

Elevating the Declaration to the same status of the Universal Declaration on
Human Rights would ensure that the rights of Indigenous peoples are explicitly
considered in the development of domestic laws and policy. This would also give
meaning to Australia’s formal position that it supports the
Declaration.

The next step is for the government to work with Aboriginal and Torres Strait
Islander peoples to develop a national implementation strategy that is committed
to by all tiers and arms of government and ensures the full implementation of
the Declaration in Australia. A number of approaches have been made by
Indigenous Peoples Organisations of Australia, and the Australian Human Rights
Commission to encourage the government to work with us in this regard.

The study on Indigenous Peoples and the right to participate in decision
making provides significant guidance for governments in developing such plans
and highlights the need to ensure that Indigenous peoples are included and are
central to such development.

A national implementation strategy will also go towards achieving a central
tenant of the Declaration, namely the re-setting of relationships between
indigenous peoples and the broader community but more particularly governments.
The Declaration provides the normative guidance for actions to ensure this
relationship is effective, cooperative, and based on mutual respect. The
Declaration in affirming indigenous peoples collective rights to
self-determination and the right to participate in decision-making through the
principle of free, prior and informed consent, should be used to guide the
development of institutional structures, arrangements and processes needed for
indigenous peoples to be able to effectively engage in a relationship based on
mutual respect. Any doubt to this is made clear in the preamble. The General
Assembly commented that it is:

Convinced that the recognition of the rights of indigenous peoples in this
Declaration will enhance the harmonious and cooperative relations between the
State and indigenous peoples.[5]

Mister Chair

The Australian Government is also to be commended for its revised policy
position in extending an open invitation to all of the United Nations special
procedures. In August 2009, the Special Rapporteur on the situation of human
rights and fundamental freedoms of indigenous people visited Australia on an
official visit. In March 2010 the Special Rapporteur released his report on the
‘Situation of Indigenous Peoples in Australia’ (UN DocA/HRC/15) it
will be discussed later this year at the 15th session of the Human
Rights Council. This report provides a real opportunity for the Australian
Government and Indigenous peoples in Australia to reflect on how the rights of
Indigenous peoples in Australia could be better implemented, protected and
realised in Australia.

The Special Rapporteur’s mandate to promote and elaborate on the rights
contained in the UN Declaration on the Rights of Indigenous Peoples (Human
Rights Council Resolution 6/12 and UN Doc A/HRC/9/9) is an important role in
realising the rights of Indigenous peoples. The report is especially valuable
for the Australian Government as its recommendations provide a clearly
articulated process to ‘take appropriate measures... to achieve the ends
of the Declaration’ (Article 38). The technical and practical guidance
provided by the report should form the key reference point for the Australian
Government to ensure it meets its human rights obligations as they apply to
Aboriginal peoples and Torres Strait Islanders in Australia.

The Australian Human Rights Commission also appreciates the analysis in the Progress Report on the Study on Indigenous Peoples and the Right to
Participate in Decision-Making on the significance of ILO 169. Australia
has not yet ratified this important Convention. Many of the rights contained
within the Declaration are confirmed in ILO 169. The Report confirms that ILO
169 provides the general legal framework for effective consultation and
participation of Indigenous peoples, as well recognising Indigenous peoples
rights to exercise control over our economic, social and cultural development,
particularly with regard to our lands and natural resources. In order for the
Australian Government to give full effect to the Declaration, the government
should commit to ratifying the International Labour Organisation Convention 169
as a priority.

Recommendations

The Australian Human Rights Commission recommends that:

  1. The Expert Mechanism prepare a draft resolution for the Human Rights Council
    calling on states to work in consultation with their indigenous peoples to
    develop an action plan for the implementation of the Declaration.

  2. That the Expert Mechanism prepare a draft resolution for the Human Rights
    Council to elevate the Declaration to the same status of the Universal
    Declaration on Human Rights to ensure that the rights of Indigenous peoples are
    explicitly considered in the development of domestic laws and policy.

  3. The Expert Mechanism include in its report the important role of National
    Human Rights Institutions and that the Declaration is formally incorporated into
    the mandate of NHRI’s.

  4. The Expert Mechanism prepare a draft resolution for the Human Rights Council
    to broaden the scope of human rights covered by National Human Rights
    Institutions to include the Declaration on the Rights of Indigenous
    Peoples.

  5. That the Expert Mechanism prepare a draft resolution for the Human Rights
    Council to encourage all States who have not yet ratified International Labour
    Organisation Convention 169, to do so as a priority.

[1] Commonwealth, Parliamentary
Debates, House of Representatives (8 February 2010) p 97 (The Hon Tony
Abbot, Leader of the
Opposition).
[2] Legal and
Constitutional Affairs Committee, Parliament of Australia, Native Title
Amendment Bill (No.2) 2009 [Provisions] (2010), para
357.
[3]Aurukun Shire Council
& Anor v. CEO Office of Liquor and Gaming and Racing in the Department of
Treasury [2010] QCA 37 (1 March 2010), para
33.
[4] Northern Australian
Indigenous Land and Sea Management Alliance, A Policy Statement on Northern
Australian Indigenous Water Rights, (2009) at http://www.nailsma.org.au/projects/water_policy.html (viewed 26 March 2010); Goldfields Land and Sea Council, Mining Policy: Our Land is Our Future, (2008) at http://www.glc.com.au/ (viewed 26 March
2010).
[5]United Nations
Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295, UN
Doc: A/61/L.67 (2007), preambular para 18.