Expert Mechanism on the rights of Indigenous peoples Statement by Tom Calma, Australian Human Rights Commission. (2008)

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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.

2^nd 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...