Declaration on the Rights of Indigenous Peoples Parliamentary Briefing

Declaration on the Rights of Indigenous Peoples

Parliamentary Briefing Opening statement by

Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner

Parliament House Canberra, 12 October 2006

Good morning Senators, Members, ladies and gentleman and friend in the public gallery.  I acknowledge and pay my respects to the Ngunnawal peoples and their ancestors, the traditional owners of the land on which we are meeting today.

Thank you for attending this important briefing session and I hope you will leave with an informed appreciation of the Declaration of the Rights of Indigenous Peoples, its current status both domestically and internationally and its potential impacts on Australia.

We are providing this briefing to parliamentarians because in a couple of months’ time an Australian government representative will cast a vote on an issue that will impact on all Australians.  Yet the vast majority of Australians, including federal politicians, will not know of the issue nor had an opportunity to discuss and consider a position on the issue.  We as Indigenous Australian, as Aboriginal people and as Torres Strait Islanders have taken the initiative to share and inform you of the Declaration of the Rights of Indigenous Peoples,

I am joined today by Les Malezer, an Aboriginal person who is an active lobbyist, commentator and advocate on international issues that impact on Indigenous peoples and Megan Davis an Indigenous advocate, international law academic, activist and commentator. 

Unfortunately Mike Dodson could not join us due to ill health but he is with us in spirit and his views are clearly articulated in the many commentaries he has made on this issue both domestically and internationally.

I will provide a general overview of the Declaration, explain what is happening in the UN and internationally and how it relates to Australia.  This will include the key, controversial issues raised by the Australian government.

Les and Megan will present and elaborate on the content of the Declaration and discuss the rationale for the articles and preambulatory paragraphs.  

Megan will also identify issues, taking up the controversial issues I mentioned, and give an account of the sensitive issues in the Declaration and how they were resolved, from indigenous peoples’ and States perspectives.  You will learn from the presentation that much effort and attention was given to the formulation of the Declaration and that the debate did consider all of the issues, over two decades.

So why are we three presenting to you today?  Since the abolition of ATSIC in June 2004 there has not been a national Indigenous voice representing Indigenous issues internationally (and nationally) except for a number of individuals or NGO groups who are generally self funding or reliant on ad hoc submission based international aid.  Les and Megan are such individuals along with small number of other advocates. 

As Aboriginal and Torres Strait Islander Social Justice Commissioner I submit annually to the federal Parliament a report regarding the enjoyment and exercise of human rights by Aboriginal persons and Torres Strait Islanders, including recommendations as to the action that should be taken to ensure the exercise and enjoyment of human rights by those persons.  Consequently I have provided strategic and qualitative inputs as required and monitored the progress of the draft declaration.

I have also since the abolition of ATSIC, through limited financial support by the government, convened workshops in Australia to prepare Indigenous delegates and develop dialogue and information sharing between government and Indigenous delegates prior to major international meetings.  However, these workshops were not, and could not, be considered to be “consultation with Indigenous people.”

Process

Let me now outline the current status of the declaration.

• The Declaration was adopted by the UN Human Rights Council on 29 June 2006.
• It was adopted by vote with 30 in favour, 2 against, 12 abstentions and 3 countries not present. (and it should be noted that only members of the Human Rights Council can vote so while the numbers may seem small they reflect the membership of the Council)
• The 2 who voted against were Canada and Russia.  Russia’s opposition was based on process.
• Canada however did object to some of the content and they noted that their views reflected those of Australia, New Zealand and the USA.  It is interesting to note that at the final Working Group meeting Canada had declared tacit support to the Declaration and a change of Government and an intervention promoted the objection.

The resolution reads as follows:  The Human Rights Council

1. Adopts the United Nations Declaration on the Rights of Indigenous Peoples as proposed by the Chairperson-Rapporteur of the working group of the Commission on Human Rights to elaborate a draft declaration in accordance with paragraph 5 of the General Assembly resolution 49/214 of 23 December 1994 in annex 1 to the report of the working group on its eleventh session (E/CN.4/2006/79);

2.  Recommends to the General Assembly that it adopt the following draft resolution:

The General Assembly, Taking note of Human Rights Council resolution 2006/ 2 of 29 June 2006, in which the Council adopted the text of the United Nations Declaration on the Rights of Indigenous Peoples,

1. Expresses its appreciation to the Council for the adoption of the United Nations Declaration on the Rights of Indigenous Peoples;

2. Adopts the Declaration as contained in the annex to Council resolution 2006/2 of 29 June 2006.

It is anticipated that the vote in the UN General Assembly will take place in late November or early December 2006.

So why a declaration?

Indigenous rights have been a long-time commitment by the United Nations and have had support in the past by the Australian government.

The UN’s attention arises out of acceptance that the situation of indigenous peoples around the world is consistently poor, with common experiences such as loss of territories, social destruction, economic exploitation, discrimination & deprivation, low social standing and loss of cultural identity, combined with no political power. And while Human Rights treaty bodies and special mechanisms have been reporting on the situation indigenous peoples for decades, our status has not been improving and States are not showing signs of addressing the issues adequately and systemically.

Further, indigenous peoples have had a collective international presence at the UN for over two decades and have been advocating for accountability and changes.  

A Declaration provides a foundation for UN initiatives regarding indigenous peoples including Special Rapporteurs, the First and Second Decades of indigenous peoples, the Permanent Forum on Indigenous Issues and the Voluntary Funds.

Although the Declaration has no enforcement provisions it is a universal standard consistent with international human rights instruments, including the UN Charter, the Universal Declaration on Human Rights and human rights treaties.

The interpretation of treaties may be influenced by provisions of the Declaration.  For example, the reports that Australia is soon to present under the International Covenant on Civil and Political Rights could examine articles under that Covenant from the perspective of the Declaration. This could be through Article 1 (self-determination), Article 2 (non-discrimination), or Article 27 (right to culture).

The Declaration, and the Decade Program of Action, will in principle require closer collaboration between States and indigenous peoples.

The Declaration also recognises that indigenous peoples, as a collective of peoples, have the right to restitution of and respect for their status, society and institutions, juridical systems, territories and resources and decision-making capacities.

Is there indigenous support for the Declaration?

There is widespread support for the passage of the Declaration

• This is demonstrated by:
• a) the seven regional indigenous caucus statements, covering all regions of the world, made at the Human Rights Council urging adoption of the Declaration;
• b) the joint statement of several hundred indigenous NGO’s urging adoption which was initially submitted at the Permanent Forum, and then submitted (with further signatories) at the Human Rights Council (please note that all of these documents are linked on the front page of the HREOC website for easy reference and download)

At a political level this support has been forthcoming because of the belief that the current text is the best that will be achievable and that further negotiations could only lead to a weakening of the text.

The support has also been forthcoming because:

• a) self-determination is guaranteed without qualifications and consistent with international law;
• b) where there are weaknesses in the text, these are generally through omissions of statements of rights rather than restrictions on those rights.  Hence, the opinion that we can build on the Declaration rather than be fighting to prevent the loss of rights or recognition; and
• c) support from indigenous groups in countries with domestic treaties has resulted in treaties language in the text, which is seen as guaranteeing all existing treaty rights and this was a big issue for some indigenous groups who were previously committed to the Sub-Commission’s original text.

Very little opposition to the Declaration has been expressed by indigenous groups – with the exception of a small group who maintain their support for the original Sub-Commission text.

So what are the issues for the Australian government?

This is not clear and can only be answered by the government. 

However, Australia is a member of the ANZUS coalition who was active in opposition to the Declaration - particularly at the UN Permanent Forum on Indigenous Issues in May 2006.

In the last Working Group session in February 2006 these countries proposed a new formulation of self-determination which:

• a) limits it to internal dimensions;
• b) guarantees territorial integrity; and
• c) states that this right of self-determination is a new right and not the same or as extensive as the self-determination currently recognised in international law and in the two covenants (ICCPR / ICESCR)

This view has been rejected by most indigenous and State participants on the basis that:

• a) self-determination is applied consistent with the UN Charter and international law and this means respect for territorial integrity (with exceptions where governments are not acting democratically); and
• b) it is discriminatory to provide a second rate form of Self Determination to indigenous peoples

Indigenous peoples have also provided, in the negotiations at the 9th and 10th session, an explanatory note which recognises that the territorial integrity issue is covered in the Declaration through pp15, 15bis and Article 45 – and through the application of international law (being applied consistently),

ANZUS have also been active in opposing the land and resources provisions of the Declaration and provisions relating to informed consent of Indigenous peoples in decision making processes and Megan or Les will elaborate on this.

Participants in the negotiations have noted that the objections raised tend to be very extreme in their interpretation and not made in good faith (which is a general principle of interpretation of international obligations).

Other comments

Let me conclude by reaffirming that:

• The Declaration has in essence been formulated through the compilation of relevant articles from existing human rights treaties and standards.  These treaties and standards are applicable and administered to the world population
• The Declaration is a critical development internationally as it recognises and respects the position of the world’s indigenous peoples
• The Declaration is intended to specify additional protections that indigenous peoples require if we are to fully enjoy our human rights, just like the rest of society.  Experience to date suggests that the existence of individual protections of human rights, which is what the current system provides, has not been effective in protecting the rights of indigenous peoples, who are consistently the most marginalised group in societies worldwide. This requires specific protections of our cultures;
• The rights recognised in the Declaration are to be applied consistently with all other human rights, so they do not override the rights of other people, nor do they protect the rights of groups over those of individuals;
• While there is opposition from ANZUS to the Declaration this is largely a matter of interpretation and not of fundamental opposition to the purpose of the Declaration.  We should not forget that in the final session of negotiations consensus was reached on approximately two thirds of the Declaration - in other words, every single government present agreed on the importance of those articles which relate to issues as diverse (and important) as the return of remains from state collections; protections against violence, genocide and culturally appropriate delivery of services.
• In light of current situations we face in Australia, I would note that the Declaration is the FIRST international instrument that specifically recognises violence and abuse against Indigenous women and children as an abuse of human rights.  For example, CEDAW, the women's convention, prevents discrimination and this has been interpreted as including violence and abuse, but it is not specifically named in the treaty. The same goes for CROC, which refers to security of children etc, but not specifically violence and not specifically in relation to Indigenous children needing special measures.
• Its first impact will be to mobilise the UN system and change their policies and programs with a more direct focus on indigenous rights
• This will impact in countries with UN activity, and this does not include Canada, Australia, New Zealand or the United States
• The Permanent Forum will assume a lead monitoring role on the Declaration in all its activities, and this will also be tied to the objectives of the 2nd International Decade (and the Millennium Development Goals)
• The impact at a local level is less certain, but will certainly be damaged by a vote against the Declaration

Indigenous peoples in Australia are commencing to mobilise their opposition to the government’s position.  We are opening dialogue with politicians to urge you to consider, debate and respect human rights treaties and support for the Declaration and for the government to express your reservations through dialogue but to not vote against the Declaration. 

Thank you and I would now like to hand over to Les Malezer to walk us through the articles of the Declaration.