Social Justice Report 2006: Information Sheet 5: Developments on Indigenous human rights: Closing the ‘protection gap’

Social Justice Report 2006

Information Sheet 5: Developments on Indigenous human rights: Closing the ‘protection gap'

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In recent years there have been significant developments at the international level that impact upon the recognition and protection of the human rights of Indigenous peoples.

The international community is increasingly focusing on the need to address the ‘protection gap' between the commitments of governments relating to human rights and their activities on the ground.

Recent developments

• UN reform

The UN World Summit in September 2005 saw all governments agree to integrate the promotion and protection of human rights into national policies and to support the further mainstreaming of human rights throughout the United Nations system. The creation of the Human Rights Council has raised challenges to maintain the capacity for direct participation of and engagement with Indigenous peoples on human rights issues. There remain many issues that require the further elaboration of Indigenous rights through the international human rights system. These include: guidelines on the protection of Indigenous heritage, the application of the principle of free, prior and informed consent, and the guidelines and monitoring for the implementation of the Declaration on the Rights of Indigenous Peoples. The creation of the Human Rights Council also provides opportunities for Indigenous peoples to further promote their human rights, particularly through the new universal periodic review mechanism.

• The mainstreaming of human rights across the UN and participatory development practices

Accompanying these reforms to the UN structure have been sustained efforts to mainstream human rights across the UN by integrating them into all policies and programs. Recent developments in international law (through binding treaty obligations) and UN policy and practice demonstrate the increased acknowledgement and reliance on human rights as providing a framework for proactively addressing existing inequalities within society and for recognising and protecting the distinct cultures of Indigenous peoples. The emerging principle of free, prior and informed consent is increasingly emerging as a practical methodology within the UN system for designing programs and projects, which either directly or indirectly affect Indigenous peoples. Both the Permanent Forum and the Working Group on Indigenous Populations (WGIP) have emphasised that the principle of free, prior and informed consent brings together, or synthesises, the active legal obligations of States under existing international human rights law. In relation to development projects affecting Indigenous peoples' lands and natural resources, the respect for the principle of free, prior and informed consent is important so that:

• Indigenous peoples are not coerced, pressured or intimidated in their choices of development;
• Their consent is sought and freely given prior to the authorization and start of development activities;
• Indigenous peoples have full information about the scope and impacts of the proposed development activities on their lands, resources and well-being; and
• Their choice to give or withhold consent over developments affecting them is respected and upheld.

• Global commitments to action: The Millennium Development Goals (MDGs) and Indigenous peoples

Concerns remain that after five years of implementation, there is insufficient focus on the application of the MDGs to Indigenous peoples and also within developed countries. Efforts are needed at the national, regional and international levels to achieve the Millennium Development Goals with the full participation of Indigenous communities without interfering with their development paths and their holistic understanding of their needs. Such efforts must take into account the multiple levels and sources of the discrimination and exclusion faced by Indigenous peoples.

• Global commitments to action: The Second International Decade of the World's Indigenous People

On 20 December 2004, the UN General Assembly proclaimed the Second International Decade of the World's Indigenous People. The Decade commenced on 1 January 2005 and runs until 2015. The Program of Action for the Second Decade approves five key objectives for the Decade:

1. 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.
2. Promoting full and effective participation of Indigenous peoples in decisions which directly or indirectly affect their lifestyles, traditional lands and territories, their cultural integrity as Indigenous peoples with collective rights or any other aspect of their lives, considering the principle of free, prior and informed consent.
3. Redefining development policies that depart from a vision of equity and that are culturally appropriate, including respect for the cultural and linguistic diversity of Indigenous peoples.
4. Adopting targeted policies, programmes, projects and budgets for the development of Indigenous peoples, including concrete benchmarks, and particular emphasis on Indigenous women, children and youth.
5. Developing strong monitoring mechanisms and enhancing accountability at the international, regional and particularly the national level, regarding the implementation of legal, policy and operational frameworks for the protection of Indigenous peoples and the improvement of their lives.

Overall, the objectives and the Program of Action of the Second Decade provide a focused framework for achieving the protection of the rights of Indigenous peoples internationally and domestically over the coming decade. The UN Permanent Forum on Indigenous Issues has stated its intention to use its coordination role within the UN to promote an integrated approach to the Second Decade and the MDGs, so that they are complementary and mutually reinforcing.

• Recognition of Indigenous specific rights

Indigenous peoples have advocated the need for additional, specifically defined forms of recognition due to the existence of a ‘normative protection gap' in the international system. The process of elaborating specific human rights norms that are applicable to Indigenous peoples began over 20 years ago. The outcomes of this advocacy are reflected in the UN Declaration on the Rights of Indigenous Peoples. The Declaration is of utmost importance to combat discrimination against Indigenous peoples. It does not create new rights. It elaborates upon existing international human rights norms and principles as they apply to Indigenous peoples. The Declaration was adopted by the Human Rights Council on 29 June 2006 and is currently being considered by the General Assembly of the UN. The ‘protection gap' in Australia There is a clear lack of consistency between existing policies and approaches to Indigenous issues in Australia, and the international legal obligations and developments outlined above. The human rights system provides a framework for governments to encourage the adoption of proactive measures to create an enabling framework for the active engagement of all citizens through partnerships, shared decision-making and ultimately shared responsibility for outcomes. By comparison, the current approach of the federal Government pre-determines the priorities without engagement of Indigenous peoples, and therefore provides a passive system for service delivery and policy design. The irony of this approach is that it is a system which constantly attacks Indigenous peoples for being passive recipients, and yet it is in itself, resistant to any form of active engagement. The ability of Indigenous Australians to build on the widespread reforms in UN practice is further impeded by there being no formalised process for engagement with the government, which automatically creates a gap between principles of international law and domestic legal practice. There is a key role for NGOs and the Indigenous community sector to bridge the ‘protection gap'. The existence of an information gap within civil society on human rights is a major barrier to achieving this. Not only is there is a lack of understanding about human rights by Indigenous peoples, but government currently provides only limited support to Indigenous communities to build their capacity to understand and advocate for their rights. The report makes several recommendations to address these issues, namely:

• Identification of a focal point within the federal Government to coordinate, on a whole of government basis, its Program for the Second Decade of the World's Indigenous Peoples and for identifying contact points within federal departments on the subject matters of international negotiations;
• That the non-government sector, led by members of the Australian Council for International Development as appropriate, engage with Indigenous organisations and the IPO Network to build partnerships for the implementation of the Second International Decade;
• That the Department of Foreign Affairs, in conjunction with the Social Justice Commissioner, conduct regular briefings for all agency heads on developments on the rights of Indigenous peoples, including the right to development, Millennium Development Goals and Second International Decade for the World's Indigenous People.