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The Declaration on the Rights of Indigenous Peoples

Aboriginal and Torres Strait Islander Social Justice Commissioner’s Submission to the Expert Mechanism on the Rights of Indigenous Peoples, 4th session.

11 July 2011

Table of Contents

1 Introduction

  1. The Aboriginal and Torres Strait Islander Social Justice Commissioner (Social Justice Commissioner makes this submission to the Expert Mechanism on the Rights of Indigenous Peoples in relation to Agenda Item 5: The Declaration on the Rights of Indigenous Peoples. The Social Justice Commissioner is a member of the Australian Human Rights Commission (Commission).
  2. The Commission is Australia’s National Human Rights Commission (NHRI) and proud history of advocating for the protection of the rights of Aboriginal an Torres Strait Islander peoples (the Indigenous peoples of Australia).
  3. The Social Justice Commissioner is an identified office which has specific functions to monitor the exercise and enjoyment of human rights by Aboriginal and Torres Strait Islander peoples.
  4. The Special Rapporteur on the Rights of Indigenous Peoples has acknowledged that this position is an ‘exceptional model for advancing the recognition and protection of rights of indigenous peoples’.[1]
  5. This dedicated Commissioner provides for a focus on Indigenous issues, within the Commission, at all times. The Social Justice Commissioner’s functions include:
    • to submit a report (Social Justice Report) to the federal Parliament annually regarding the enjoyment and exercise of human rights by Aboriginal persons and Torres Strait Islanders, and including recommendations as to the action that should be taken to ensure the enjoyment and exercise of human rights by those persons
    • to submit a report (Native Title Report) to the federal Attorney-General on an annual basis on the effect of native title laws on the exercise and enjoyment of human rights of Aboriginal peoples and Torres Strait Islanders
    • to promote discussion and awareness of human rights in relation to Aboriginal persons and Torres Strait Islanders
    • to undertake research and educational programs, and other programs, for the purpose of promoting respect for the human rights of Aboriginal persons and Torres Strait Islanders and promoting the enjoyment and exercise of human rights by Aboriginal persons and Torres Strait Islanders
    • to examine enactments, and proposed enactments, for the purpose of ascertaining whether they recognise and protect the human rights of Aboriginal persons and Torres Strait Islanders, and to report to the Minister the results of any such examination.
    The Social Justice Commissioner is supported by a small team of policy staff in the Social Justice Unit of the Commission.

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2 Summary

  1. The Commission and the Social Justice Commissioner have a legacy of strong advocacy for Indigenous peoples’ human rights including the Declaration on the Rights of Indigenous Peoples (the Declaration).
  2. The Social Justice Commissioner has launched an initial suite of community education materials on the Declaration. Further materials will be produced and distributed.
  3. Australia voted against the Declaration when it was adopted by the General Assembly in 2007. In 2009, the Australian Government formally endorsed the Declaration and have made other steps to advance the rights of Aboriginal and Torres Strait Islander peoples. However, there is a need for a holistic and coordinated approach to giving full effect to the Declaration.
  4. The Social Justice Commissioner is of the view that a lack of understanding about what implementation of the Declaration looks like is impeding action.
  5. The Social Justice Commissioner considers that a holistic and targeted national action plan is needed to give full effect for the Declaration. This could include:
    • a high level framework agreement
    • a staged plan for the progressive realisation of agreed priorities and targets
    • intergovernmental commitment
    • an integrated monitoring and reporting framework.
  6. The Social Justice Commissioner is currently advocating that the Australian Government enter into a process with Aboriginal and Torres Strait Islander peoples to negotiate an action plan on the Declaration.
  7. NHRIs have a key strategic role to play in giving full effect to the standards contained in the Declaration.
  8. The APF and OHCHR are partnering to produce a training tool kit for NHRIs focusing on the rights of Indigenous peoples, particularly the Declaration. The Social Justice Unit of the Commission has been engaged to draft the written content of these materials.

2.1 Recommendations

  1. That Expert Mechanism recommends that all States explicitly recognise that the Declaration interprets how their existing human rights obligations apply to Indigenous peoples.
  2. That the Expert Mechanism work closely with the Human Rights Council, the Special Rapporteur on the Rights of Indigenous Peoples and the United Nations Permanent Forum to develop detailed practical guidance that inform State processes in the development of strategies or action plans to give full effect to the Declaration at national, regional and local levels.
  3. That the Expert Mechanism urge all States to develop holistic and targeted action plans to give full effect to the Declaration.

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3 The Commission’s legacy of engagement

  1. The Commission and the Social Justice Commissioner have a legacy of strong advocacy in relation to the Declaration. For example
    • The Commission participated in the negotiation of the Declaration in the CHR Working Group for over 10 years, as well as through participation in other international fora for Indigenous peoples human rights.
    • The Commission advocated for and supported the Australian Government to formally endorse the Declaration.
    • The current Social Justice Commissioner has committed to being guided by the Declaration in the performance of his statutory functions – to monitor the exercise and enjoyment of human rights by Aboriginal and Torres Strait Islander peoples.
    • Advocating that the Australian Government to develop a national action plan to give full effect to the Declaration.
  2. With the support of The Christensen Fund, in December 2010 the Social Justice Commissioner launched an initial suite of community education materials on the Declaration. This included:
    • a double sided poster including the full legal text of the Declaration
    • a 68 page in-depth plain-language guide to the Declaration
    • an 8 page plain-language overview of the Declaration.[2]
    These materials have been widely distributed to Aboriginal and Torres Strait Islander organisations and communities. The Australian Government has provided additional funding to reprint these materials.
  1. Later this year the Social Justice Commissioner will launch a short documentary/DVD on the Declaration. This will be consistent with and compliment the initial suite of materials. The Commission is also seeking further funds to produce an interactive website on the Declaration.

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4 Australian Context

  1. When the Declaration was adopted by the General Assembly in 2007, Australia was one of four countries[3] to vote against its adoption.
  2. The Australian Government issued a formal statement of support for the Declaration on 3 April 2009. In doing so the Government said the Declaration was important in re-setting the Government’s relationship with Aboriginal and Torres Strait Islander peoples.[4]
  3. The Australian Government has also undertaken a number of initiatives that are consistent with human rights standards and the principles contained within the Declaration.
  4. The Australian Government has committed support for the establishment of the National Congress of Australia’s First Peoples which goes some way to providing Aboriginal and Torres Strait Islander peoples a mechanism of representation and for effective engagement in issues affecting them.[5]
  5. The Australian Government is currently undertaking a process, which has bipartisan political support, to recognise Aboriginal and Torres Strait Islander peoples in the Constitution.[6]
  6. These are welcome initiatives, and all support the realisation of human rights by Aboriginal and Torres Strait Islander peoples. However, the Social Justice Commissioner is of the view that the Australian Government should be applying a holistic and coordinated approach to giving full effect to the Declaration.
  7. Despite the fact that the Australian Government reversed its position in 2009 to formally support the Declaration, the Social Justice Commissioner is concerned that the governments of Australia continue to misunderstand the relevance of the Declaration in their activities, and are unclear about their obligations in this regard. In 2009, the Minister for Families, Housing, Community Services and Indigenous Affairs, in her speech marking Australia’s endorsement confirmed that ‘Australia’s existing international obligations are mirrored in the Declaration’.[7] More recent statements made by the government on one hand assert that their laws, policies, and programs are consistent with the Declaration,[8] while on the other hand, they assert that the Declaration is not legally binding, and as such the Government has no legal obligation to implement it.[9] The Social Justice Commissioner is concerned that the Australian Government is using the status of the Declaration to avoid their responsibility to implement human rights as they apply to Indigenous peoples.
  8. It is the Social Justice Commissioner’s view that a lack of understanding about what ‘implementation’ of the Declaration looks like is impeding action. In part this is caused by the comprehensiveness of the Declaration, which contains 24 preambular paragraphs and 43 operative articles and it outlines all of the existing human rights standards as they apply to Indigenous peoples in light of their unique, historical, social and cultural circumstances.
  9. The Declaration contains a number of rights and principles that Australian governments are finding it difficult to understand and implement in practice, particularly the right to self-determination and the principle of free, prior and informed consent. There is a need for detailed practical guidance at the international level to inform States on the content of the these rights and principles.

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5 Progressing the Declaration in Australia

  1. The Social Justice Commissioner believes that a holistic and targeted action plan is needed to give full effect to the Declaration. The approach taken by the Australian Government for the National Disability Strategy, which was developed in part as a response to Australia’s ratification of the United Nations Convention on the Rights of Persons with Disabilities, can provide some guidance to the development of such an action plan.
  2. A national action plan could include:
    • the development of a high level framework agreement to give coherence to and guide government action
    • a staged plan for the progressive realisation of agreed priorities and targets, guided by the high level framework
    • intergovernmental commitment led by the highest level of government within the State
    • an integrated monitoring and reporting framework that can be used to report on compliance with various UN bodies on progress.[10]
  3. The proposed high level framework could be an effective mechanism to avoid viewing the Declaration as 43 separate articles. Rather a more integrated approach could be developed based on the key principles and themes in the Declaration. These key themes are:
    • the right of self-determination and to freely determine our political status and development priorities
    • the right to participate in decision-making and the principle of free, prior and informed
    • non-discrimination and equality
    • respect for and protection of culture
    • rights to lands, territories and resources.
    These key principles could be used to guide the development of the high level framework, as well as to develop a detailed action plan including identifying key outcome areas with specific and measurable targets.
  1. This proposed approach is particularly relevant for the Australian Government who recently announced the National Human Rights Framework which includes the development of a National Action Plan on Human Rights. Unfortunately, as it currently stands the National Human Rights Framework does not explicitly acknowledge that the Declaration will guide how the Framework or Action Plan will be implemented as it impacts on Aboriginal and Torres Strait Islander peoples
  2. The Social Justice Commissioner is currently advocating that the Australian Government enter into a process with Aboriginal and Torres Strait Islander peoples to negotiate and develop an action plan to give full effect to the Declaration.
  3. It is suggested that the Social Justice Commissioner convenes a number of dialogue meetings with Aboriginal and Torres Strait Islander peoples organisations and government officials to development the content of the Action Plan (possibly guided by suggestions above).
  4. It is envisaged that this process will culminate in a National Summit for the sign off and agreement to the Action Plan.
  5. The Australian Government have indicated that they broadly support the concept of a National Summit, however they have yet to formally commit to the process.

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6 The role of NHRIs and Indigenous peoples human rights

  1. NHRIs have broad mandates which require them to protect and promote all human rights of all persons. However, there are strong arguments for the NHRIs to devote particular attention to Indigenous peoples’ human rights.
  2. This is because Indigenous peoples represent some of the most marginalised and vulnerable peoples in the world. Human rights violations continue to negatively impact many of the world’s indigenous peoples and the accommodation of indigenous rights remains elusive. One way in which this manifests is poverty. Indigenous peoples number approximately 370 million, around 5% of the world’s population, yet make up 15% of the world’s poor and one-third of the world’s extremely poor.[11]
  3. In response to this, there have been significant advances in the development of normative standards for the protection of indigenous peoples’ rights at the international level. This has culminated in the adoption of the Declaration in 2007 by the General Assembly.
  4. 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. Consequently, NHRIs have a key strategic role to play in giving full effect to the standards contained in the Declaration.
  5. 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. NHRIs can assist States’ in meeting their obligations in this regard.
  6. NHRIs can advance the ends of the Declaration in the performance of all their functions including, complaint handling, education and awareness raising activities, monitoring and reporting on State performance and in undertaking public inquiries.

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7 Training toolkit for NHRIs on the Declaration

  1. Recognising the important role of NHRIs in promoting the Declaration, the Asia Pacific Forum of National Human Rights Institutions (APF) and the Office of the High Commission for Human Rights (OHCHR), is producing a training toolkit for NHRIs focusing on the rights of Indigenous peoples and the Declaration.
  2. The training toolkit will be divided into two main components, namely:
    • a written training manual to help NHRIs operationalise the Declaration
    • a documentary and associated audio-visual materials regarding NHRIs and Indigenous peoples, which will feature interviews from international experts and NHRIs.
  3. The APF has engaged the Social Justice Unit of the Commission to draft the written content of this toolkit.
  4. NHRIs and Indigenous peoples are encouraged to contribute to the development of this toolkit. This session of EMRIP is an opportunity for input into the development of the content of the toolkit. The OHCHR will facilitate a consultation with NHRIs on good practices addressing the rights of Indigenous peoples.
  5. Of particular relevance will be case studies falling into two broad categories
    • short vignettes outlining practical examples of Indigenous peoples human rights in practice
    • examples of work that NHRIs are doing to advance the rights of Indigenous peoples.
  6. It is hoped that this training toolkit provides NHRIs with guidance in undertaking work to advance the rights of Indigenous peoples and achieve the ends of the Declaration.

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[1] J Anaya, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya: Addendum: The situation of indigenous peoples in Australia, UN Doc A/HRC/15/37Add.4 (2010), para 78. At http://unsr.jamesanaya.org/PDFs/Australia3.pdf (viewed 23 July 2010).
[2] See Australian Human Rights Commission, Community Guide to the UN Declaration on the Rights of Indigenous Peoples, http://www.humanrights.gov.au/declaration_indigenous/index.html (viewed 4 July 2011).
[3] The three other States were Canada, United States of America and New Zealand. All have since reversed their position to indicate formal support for the Declaration.
[4] J Macklin, Minister for Families, Housing, Community Services and Indigenous Affairs, Statement on the United Nations Declaration on the Rights of Indigenous Peoples (Speech delivered at Parliament House, Canberra, 3 April 2009). At http://www.jennymacklin.fahcsia.gov.au/statements/Pages/un_declaration_03apr09.aspx (viewed 13 December 2010).
[5] See National Congress Of Australia’s First Peoples, http://nationalcongress.com.au/ (viewed 4 July 2011).
[6] See You Me Unity, http://www.youmeunity.org.au/ (viewed 4 July 2011).
[7] J Macklin, Minister for Families, Housing, Community Services and Indigenous Affairs, Statement on the United Nations Declaration on the Rights of Indigenous Peoples (Speech delivered at Parliament House, Canberra, 3 April 2009). At http://www.jennymacklin.fahcsia.gov.au/statements/Pages/un_declaration_03apr09.aspx (viewed 30 May 2011).
[8] Attorney General’s Department, Australia’s Universal Periodic Review, see http://www.ag.gov.au/www/agd/agd.nsf/Page/Humanrightsandanti-discrimination_InternationalHumanRights_UniversalPeriodicReview
[9] Australian Government, Australian Government and Non-Government organisation Forum on human rights, Canberra, 22 June 2011, Background Paper.
[10] Australian Government, National Disability Strategy (2011). At http://www.fahcsia.gov.au/sa/disability/progserv/govtint/nds_2010_2020/Pages/default.aspx#4b (viewed 4 July 2011).
[11] J Carino, ‘Poverty and Wellbeing’ in Secretariat of the United Nations Permanent Forum on Indigenous Issues, State Of The World’s Indigenous Peoples, UN Doc: ST/ESA/328 (2010) 13, p 21.