EMRIP- Australia has not signed federal treaty with Indigenous peoples

Item 5 Statement 
17th Session of the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP)
Thursday 11 July 2024

Thank you, Madam Chair,

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

I would like to acknowledge all First Nations Peoples and Government representatives here today.

Madam Chair,

The Declaration stands as the most comprehensive international instrument on the rights of Indigenous peoples. The Declaration requires that ‘[s]tates, in consultation and cooperation with Indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration’. 

This is the standard that States have voluntarily accepted, and which they should stand by. 

The primary barrier against the enaction of the Declaration in Australia to date has not been any unassailable legal or constitutional issues associated with domestic implementation, it has been a lack of political will, but with courage that can change.

In November last year, Australia’s Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs released its report on the Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia. 

The Australian Human Rights Commission is supportive of all six of the Committee’s recommendations which concern:

• Policy and legislation being developed consistent with the Declaration
• Development of a National Action Plan, in consultation with Aboriginal and Torres Strait Islander peoples, that outlines the approach to implementing the Declaration
• Consideration of coordination agreements with all levels of government to maximise success of a National Plan
• The establishment of an independent process of truth-telling and agreement making
• The development and adoption of content for all levels of education, including for new citizens, to enhance awareness of the human rights framework, the history of colonisation, the legal fiction of ‘terra nullius’ and its impacts, and general civic awareness.
• Amendment of the Australian Commonwealth’s Human Rights (Parliamentary Scrutiny) Act 2011 to include the Declaration in the definition of ‘human rights’, so that it be formally considered by the Parliamentary Joint Committee on Human Rights when scrutinising legislation.

To understand how much Australia has to gain by committing to a dedicated process to give effect to the Declaration, it is important to consider the exceptional elements of the Australian context and the impact this has had in entrenching inequalities faced by First Nations people.

Australia is one of the only Commonwealth countries that has not signed a federal treaty or agreement with Indigenous peoples. As such, state institutions and laws, including the national Constitution, have developed without ever having been negotiated with First Nations. 

In contemporary Australia, Aboriginal and Torres Strait Islander peoples have been recognised by the state as citizens, granted voting rights and formal equality before the law.  However, due to small numbers, and in the absence of laws and policies that promote self-determination and autonomy, First Nations participation in decision-making is undermined by majoritarian structures which marginalise the full expression of our rights.

This is compounded by the lack of truth-telling and rights-awareness in education and public discourse which has served as an obstacle to public understanding about how colonial structures and systems undermine our people’s rights and aspirations, facilitate mis and dis information, deny space for Indigenous voices to be heard, where our knowledges and lived experiences are centred in decisions made about us. 

Within this, it is crucial that we, ourselves, as First Nations Peoples, are properly resourced to learn about our rights under the Declaration and to participate in the mechanisms that are in place to protect them, so we can draw on these in our advocacy and negotiations with governments.

While there are a handful of examples throughout Australia of laws and policies that are generally aligned with the Declaration—for example, Queensland’s Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020 and its Path to Treaty Act 2023, which must be implemented in accordance with the Declaration (s6)—developments such as these are often isolated and vulnerable to repeal or amendment at the whim of governments of the day.

A comprehensive national plan to give effect to the Declaration would transform this dynamic and it is critical that Australia and other states are held to account with respect to progress against their international human rights commitments.

Recommendations:

We recommend that:

• the Expert Mechanism on the Rights of Indigenous Peoples encourage the Human Rights Council to include a specific requirement to report on the implementation of the Declaration on the Rights of Indigenous Peoples during the Universal Periodic Review process.

Thank you