Social Justice and Wellbeing (2010)

Social Justice and Wellbeing

AIATSIS Seminar
Series 2010: Indigenous Wellbeing, Canberra

Mick Gooda

Aboriginal and Torres Strait Islander Social
Justice Commissioner

28 June 2010

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Introduction

I begin today by paying my respects to the Ngunnawal peoples and their
elders, whose land we meet on today. I acknowledge their graciousness in sharing
their lands and their culture with all those who live and visit here.

I also
thank AIATSIS for asking me to speak today as part of their 2010 seminar series
on Indigenous wellbeing. The series has been running for three months now, over
the course of which there has been a range of perspectives and ideas shared on
different aspects of wellbeing and the efforts on attaining it for Aboriginal
and Torres Strait Islander communities. To this already rich collective
discussion, I would like to add today, a few reflections on how I see a human
rights framework can contribute to improving the wellbeing of Aboriginal and
Torres Strait Islander peoples.

Central to my discussion on a human rights approach to Indigenous wellbeing
will be understanding how the right to self-determination, as recognised in the
UN Declaration on the rights of Indigenous peoples and other human rights
agreements, is essential to addressing the inequities and disadvantages
Aboriginal and Torres Strait Islander peoples face in areas such as economic
development, health and education. I will also consider how human rights can
provide a useful framework for considering practical approaches to addressing
Indigenous wellbeing in a holistic manner that incorporates the physical,
mental, social, economic, political and cultural elements of wellbeing.

What is Indigenous wellbeing?

As several of the commentators to date have already contemplated during this
seminar series, wellbeing can be a relatively nebulous concept that at the end
of the day can mean all things to everyone. One of the simpler definitions that
I came across was that wellbeing was a contented state of being happy and
healthy and prosperous. But the debate on wellbeing has taken this notion deeper
to look into what does it take to achieve this state of wellbeing and how can
the progress towards achieving it be best measured.

The World Health Organisation has grounded the idea of wellbeing within its
broad concept of health, which it defines as:

Health is a state of complete physical, mental and social wellbeing and not
merely the absence of disease or
infirmity.^[1]

For some wellbeing can be equated to the idea of ‘quality of
life’ – which is distinguished from the idea of a standard of living. The latter is based primarily on income and
economic dimensions. Whereas quality of life, which also includes wealth,
employment, extends to cover other dimensions such as the built environment,
physical and mental health, education, recreation and leisure time and social
belonging.

While internationally and in Australia, there is growing agreement that the
concept of wellbeing is necessarily multi-dimensional, covering such dimensions
of our lives as the social, emotional, health, livelihood, cultural and
spiritual, as the seminar series has explored to date there is still an evolving
debate on whether there is a distinct concept of Indigenous wellbeing?

The tension that arises in the debate is between whether there is a universal
standard of wellbeing for all people, or if there are differing values that
inform what our sense of wellbeing is.

While many of us may share common factors of wellbeing, for each of us, our
wellbeing is also informed by our cultural and social values and our specific
experiences and histories.

For instance the Cooperative Research Centre for Aboriginal Health (CRCAH)
have noted:

Aboriginal social life has provided a framework for social, psychological and
economic security, in which wellbeing was socially determined through the
organisation of relationships with the land and with people within frameworks of
law and ceremony, family organisation and systems of belief known as ‘the
dreaming’.

[However] colonisation brought about forced disruption of social and cultural
systems of family life and welfare through policies of assimilation and child
removal.^[2]

Thus Aboriginal wellbeing has been deeply harmed by the dispossession and
colonisation of Aboriginal peoples, and the subsequent loss of lands, loss of
language and loss of culture.

Consequently, there have been some constructive efforts to develop
definitions of wellbeing that are informed by Aboriginal and Torres Strait
Islander peoples, their worldview and their histories. Some examples of this
include:

Enjoying a high level of social and emotional wellbeing can be described as
living in a community where everyone feels good about the way they live and the
way they feel. Key factors in achieving this include connectedness to family and
community, control over one’s environment and exercising power of
choice.^[3]

Achieving optimal conditions for health and wellbeing requires a holistic and
whole-of-life view of health that encompasses the social, emotional and cultural
wellbeing of the whole community.^[4]

An Aboriginal concept of health is holistic, encompassing mental health and
physical, cultural and spiritual health. Social and emotional wellbeing is a
concept that attempts to encompass this holistic view of health. It also seeks
to recognise Aboriginal and Torres Strait Islander peoples’ particular
experiences of grief and trauma through colonisation, separation from families,
and loss of land and culture.^[5]

There is no word in Aboriginal languages for Health. The closest words mean
"well being" and well being in the language of Nurwugen people of the Northern
Territory means 'strong, happy, knowledgeable, socially responsible, to take
care, beautiful, clean' both in the sense of being within the Law and in the
sense of being cared for and that suggests to me that country and people and
land and health and Law cannot be separated. They are all One and it's how we
work with and respect each other and how we work with and respect the country on
which we live that will enable us to continue to live across
generations.^[6]

Several commentators have noted that applying a definition of wellbeing that
isn’t informed by the worldview of Indigenous peoples, upon Indigenous
peoples, can lead to a failure to focus on the elements necessary for Indigenous
wellbeing.

For example, while employment might be an important indicator for wellbeing
for many Australians, if it is at the expense of connection with country, family
and community, it may not result in the actual improvement of wellbeing for an
Aboriginal and Torres Strait Islander person.

Measures of wellbeing

While the perception of wellbeing may differ between people, the need to
measure wellbeing has been a driving force in developing indicators of wellbeing
that are universally applicable and therefore comparable, to assess the level of
wellbeing that is being achieved by one group or another. Much of the literature
on wellbeing therefore has focused closely on the indicators for measuring
wellbeing.

Several frameworks for wellbeing indicators have been developed both overseas
and within Australia. A common indictor framework used at the international
level is the UN Human Development
Index.^[7] Within Australia indicators
frameworks that have focused on Indigenous people include the NATSIS
Survey^[8] and the Overcoming
Indigenous Disadvantage Report,^[9] produced annually by the Productivity Commission.

But such frameworks have been criticised for not being adequately informed by
Indigenous notions of wellbeing, and therefore for containing inappropriate
indicators and data collection methods. CAEPR researchers such as Kirrily Jordan
have noted that such generic frameworks do not capture the aspirations and
livelihoods of Indigenous peoples, with the result that their implementation can
disadvantage Indigenous
peoples.^[10]

One of the impacts of relying on mainstream wellbeing measurement frameworks
has been that when comparing the measures between Indigenous and non-Indigenous
groups, the focus is on the disparity between the two groups and the comparative
level of disadvantage faced by Indigenous peoples. As a result of this the focus
can become limited to achieving statistical equality - that doesn’t allow
for Indigenous difference.^[11]

An example of this is the current Government’s Closing the Gap on
Indigenous Disadvantage Policy.^[12] Some commentators have argued that this approach has limited value because it
focuses on providing Indigenous peoples the same standards of wellbeing that
non-Indigenous peoples have. Rather than recognising the broader requirements of
the more holistic nature of Indigenous wellbeing. Further, focusing on the
disparity can result in a misplaced characterisation of Indigenous peoples as
being
‘dysfunctional’.^[13] Commentators have argued that in such an approach there is limited scope for
recognising Aboriginal and Torres Strait Islander peoples’ strengths,
resources and capabilities, which equally contribute to our
wellbeing.^[14]

If the nature of wellbeing was understood from an Indigenous perspective in
the first instance, there is greater scope for incorporating the strengths as
well as the disparities faced by Aboriginal and Torres Strait Islander
communities. There is also greater scope for addressing the disparity in ways
that build on the strengths of the community, and are inclusive of other
elements of our world view, including our cultural aspects, the connection to
land, family and community.

Close the Gap Campaign

I would like to take a moment here to demonstrate how this difference in
approach is borne out in the Close the Gap campaign, as distinct from the COAG
policy on Closing the Gap on Indigenous disadvantage.

In 2005 my predecessor Tom Calma in his Social Justice Report called
on Australian governments to commit to achieving health and life expectation
equality between our people and non-Indigenous Australians within a generation.
This was based on our right to health and right to enjoy the same opportunities
to be as healthy as other
Australians.^[15]

That Report characterised Indigenous health inequality as a major human
rights issue, and called for a human rights based approach to the Indigenous
health gap.

And as a rights issue, Indigenous health inequality was largely framed as an
opportunity gap – that Indigenous peoples in Australia did not enjoy the
same opportunities to be as healthy as other Australians. That is, to see
doctors when they needed them, eat fresh food, live in healthy housing and so
on. And this is where human rights play such an important role in providing a
sound intellectual and legal foundation for an approach to Indigenous
health.

Article 12 of the International Covenant on Economic, Social and Cultural
Rights (ICESCR) recognises ‘the right of everyone to the enjoyment of
the highest attainable standard of physical and mental health’.

The right to health is essentially the right to opportunities to be healthy:
it includes the enjoyment of a variety of facilities, goods, services and
conditions necessary for the realisation of the highest attainable standard of
health. It is not to be understood as a right to be healthy (which is
something that cannot be guaranteed solely by governments).

We have a human right to the same opportunities to be healthy as other
Australians.

This focus on ensuring equality of opportunity is reflected in the way the
right to health is understood, largely as set out in General Comment 14 of the
Committee on Economic, Social and Cultural
Rights.^[16]

Thus the right to health contains the following interrelated and essential
elements:

• Availability. Functioning public health and health-care
  facilities, goods and services, as well as programs, have to be available in
  sufficient quantity within a country.

• Acceptability. All health facilities, goods and services must
  be respectful of medical ethics as well as respectful of the culture of
  individuals, minorities, peoples and communities, sensitive to gender and
  life-cycle requirements, as well as being designed to respect confidentiality
  and improve the health status of those concerned.

• Accessibility. Health facilities, goods and services have to
  be accessible to everyone without discrimination. Accessibility has four
  overlapping dimensions:

  1. Non-discrimination: health facilities, goods and services must be
     accessible to all, in law and in fact, without discrimination.

  2. Physical accessibility: health facilities, goods and services must be
     within safe physical reach for all sections of the population, This also implies
     that medical services and underlying determinants of health, such as safe and
     potable water and adequate sanitation facilities, are within safe physical
     reach, including in rural areas.

  3. Economic accessibility (affordability): health facilities, goods and
     services must be affordable for all. Payment for health-care services, as well
     as services related to the underlying determinants of health, has to be based on
     the principle of equity, ensuring that these services, whether privately or
     publicly provided, are affordable for all, including socially disadvantaged
     groups.

  4. Information accessibility: includes the right to seek, receive and
     impart information and ideas concerning health issues.

• Quality. As well as being culturally acceptable, health
  facilities, goods and services must also be scientifically and medically
  appropriate and of good quality.

And I’m sure as I’ve
set out these elements of the right to health in relation to health services,
you can see immediately how the right itself is of enormous assistance to
Indigenous Australians; recognising the importance of culturally tailored
services, for example, in ensuring that we are able to access health
services.

Thus Governments have immediate obligations in relation to the right to
health. In particular, the obligation to take deliberate, concrete and targeted
steps towards the full realisation of the right to health - known as the
progressive realisation
principle.^[17]

In 2007 the Rudd Government, the federal opposition, the main Indigenous and
non-Indigenous peak health bodies and the Social Justice Commissioner all signed
the ‘Close the Gap Statement of Intent’ which committed all parties
to achieving health equality by 2030, supported by a partnership between
Australian governments and Aboriginal and Torres Strait Islander peoples and
representatives.

The Close the Gap Campaign does not promote the simple integration of
Indigenous people into the mainstream as the way to achieve equality but rather
promotes Indigenous agency for achieving equality. Implicit in this is
Indigenous cultures are a strength and positive capability for improve our right
to health. The Close the Gap Campaign Statement of Intent notes:

We recognise that specific measures are needed to improve Aboriginal and
Torres Strait Islander peoples’ access to health services. Crucial to
ensuring equal access to health services is ensuring that Aboriginal and Torres
Strait Islander peoples are actively involved in the design, delivery, and
control of these services.

We are committed... To ensuring the full participation of Aboriginal and
Torres Strait Islander peoples and their representative bodies in all aspects of
addressing their health
needs.^[18]

Developing measures
for Indigenous wellbeing

In recent years, at the international level there has been a concerted
process to define indicators specifically for indigenous peoples’
wellbeing and sustainable development.

The UN Permanent Forum on Indigenous issues, which I was fortunate to
attended this year for the first time, considered this issue in a series of
regional and thematic workshops during 2006 -2007, and reported our findings in
the seventh session of the Forum in 2008. The Forum examined a range of
wellbeing indicators across the UN system, such as the Millennium Development
Goals, the International Labour Organization’s poverty reduction strategy
papers, and the Convention on Biological Diversity and found that there was a
significant lack of data that highlighted the status of wellbeing of Indigenous
peoples. The feeling was that one of the reasons for this was the lack of
specific indicators in existing wellbeing frameworks that reflected the issues
central to Indigenous wellbeing. Thus through the series of regional workshops,
Indigenous peoples were brought together to identify what they saw as the key
themes were for Indigenous wellbeing and what were the kinds of indicators that
could be used to measure this. They identified 12 global core themes and issues
relevant to Indigenous peoples which included:

• security of rights to territories, lands and natural resources

• integrity of Indigenous cultural heritage

• respect for identity and on-discrimination

• fate control

• full informed and effective participation

• culturally appropriate education

• health

• access to infrastructure and basic services

• extent of external threats

• material wellbeing

• gender

• demographic patterns of Indigenous
  peoples.^[19]
  

Efforts to develop indicators for Indigenous wellbeing have
highlighted that the biggest challenge faced by indigenous peoples and
communities is to ensure territorial security, legal recognition of ownership
and control over customary land and resources, and the sustainable utilization
of lands and other renewable resources for the cultural, economic and physical
health and wellbeing of indigenous
peoples.^[20]

Identifying these themes and related indictors is a critical opportunity for
Indigenous worldviews to inform the concept of wellbeing and how it should be
measured.

Declaration on the Rights of Indigenous Peoples

In a similar way the UN Declaration on the Rights of Indigenous
Peoples (Declaration),^[21] which
was also informed by the world view of Indigenous peoples, builds on the
universal human rights values and standards that have been recognised for al
peoples, and specifies how they manifest for Indigenous peoples around the
world.

The UN Declaration on the Rights of Indigenous Peoples (Declaration)
was adopted by the General Assembly of the United Nations on 13 September 2007.
It was adopted with 143 countries voting in favour, 11 abstaining and 4 voting
against. Australia was one of the four countries who voted against the
Declaration.

On 3 April 2009, the Australian Government changed its position
and formally supported the Declaration.

Today, Australia joins the international community to affirm the aspirations
of all Indigenous peoples. We do this in the spirit of re-setting the
relationship between Indigenous and non-Indigenous Australians and building
trust.^[22]

The Declaration is an international human rights instrument that recognises
the rights of Indigenous peoples. The Declaration does not create new rights but
elaborates upon existing international human rights norms and principles as they
apply to indigenous peoples. These include the rights to:

• Self-determination

• Equality and non-discrimination

• Right to practice and revitalise their culture

• Rights to education, health, housing, life

• Land, territories and resources

• Participatory development

The Declaration is among the first
international human rights instruments to explicitly provide for the
protection of women and children against all forms of violence.

The
Declaration provides a set of internationally endorsed objective standards to
guide the government’s relationship with Indigenous peoples, and to
promote actions that respect and protect Indigenous cultures.

Any reading of the text of the Declaration makes it clear that it offers a
programmatic approach to dealing with indigenous
disadvantage.^[23] The Declaration
should be seen as a remedial instrument, designed to rectify a history of
failings when it comes to protecting indigenous peoples human rights.

Article 43 is a key provision in the Declaration and it states:

The rights recognized herein constitute the minimum standards for the
survival, dignity and wellbeing of the indigenous peoples of the world.

It is easy to miss the significance of this statement. However, when it is
remembered that the Declaration was overwhelmingly adopted in the General
Assembly of the United Nations, its importance becomes clear. The General
Assembly is the home of Nation-States and their governments, not of academics
nor human rights experts. So it was the governments of the world who stood up
together in adopting this Declaration and said the rights in the Declaration are
a road map not only for more equitable outcomes for indigenous peoples but for
their very ‘survival, dignity and wellbeing’.

In following this road map, it is crucial to grasp another central tenant of
the Declaration, namely the importance of re-setting relationships between
indigenous peoples and the broader community but more particularly governments.
In other words better engagement. The Declaration in affirming indigenous
peoples collective rights to self-determination and decision-making powers
through the principle of free, prior and informed consent, is not an instrument
of division, rather an instrument to create the institutional structures,
arrangements and process needed for indigenous peoples to be able to effectively
engage in a relationship with Governments based on mutual respect. Any doubt to
this is made clear in the preamble which states the General Assembly is:

Convinced that the recognition of the rights of indigenous peoples in this
Declaration will enhance the harmonious and cooperative relations between the
State and indigenous
peoples.^[24]

Following
Australia’s endorsement of the Declaration, we are now in the process of
examining how the Declaration can be implemented within Australia. Consequently
it is useful to look at how the Declaration and the rights and principles it
recognises can also inform this discussion of wellbeing. The central tenet of
the Declaration that I would like to focus on to do this is the right to self
determination.

What is the right to self-determination?

The right to self-determination is a right for all peoples, and is recognised
in common Article 1 of both the International Covenant on Civil and Political
Rights and the International Covenant on Economic, Social and Cultural
Rights.

The same right of self-determination is contained in Article 3 of the UN Declaration on the Rights of Indigenous Peoples:

Indigenous peoples have the right to self-determination. By virtue of that
right they freely determine their political status and freely pursue their
economic, social and cultural development.

Professor Erica-Irene Daes, a Former Chair of the United Nations Working
Group on Indigenous Populations spoke of what the right to
self-determination means for Indigenous peoples and she said:

[s]elf-determination means the freedom for indigenous peoples to live well,
to live according to their own values and beliefs, and to be respected by their
non-indigenous neighbours...



[Indigenous peoples'] goal has been
achieving the freedom to live well and humanly - and to determine what it means
to live humanly. In my view, no government has grounds for fearing
that.^[25]

Professor James Anaya, who is the current UN Special Rapporteur on Indigenous
Peoples identified five elements which constitute the right to
self-determination in the context of indigenous peoples:

• non-discrimination,

• cultural integrity;

• lands and natural resources;

• social welfare and development; and

• self-government.^[26]

The Social Justice Report 2002 identified several factors essential to the
realisation of the right to self-determination for indigenous peoples. Some of
these included:

2. Respect for distinct cultural values and diversity is fundamental to the
notion of self-determination.

3. The protection of self-determination unquestionably involves some kind of
collective political identity for indigenous nations and peoples, i.e. it
requires official recognition of their representatives and institutions.

4. Respect for Indigenous peoples' relationship to land and resources is an
integral component of self-determination, from an economic, social, political
and cultural dimension.

6. Essential to the exercise of self-determination is choice, participation
and control. The essential requirement for self-determination is that the
outcome corresponds to the free and voluntary choice of the people
concerned.

9. A notion of popular participation is inherent to self-determination.

11. The existence in democratic societies of structural and procedural
barriers which inhibit the full participation of indigenous peoples must be
recognised. The nature of participation and representativeness required by
self-determination necessitates going beyond such sameness of treatment and to
strive for institutional
innovation.^[27]

What these definitions highlight is that the right to self-determination for
indigenous peoples is about guaranteeing full, free and effective participation
in all aspects of public life, particularly government
decision-making.^[28]

Accordingly, the essential requirement for self-determination is that it
corresponds to the choice, participation and control of the people
concerned^[29] and what has been
recognised in the Declaration as the principle of free, prior and informed
consent.

Article 19

States shall consult and cooperate in good faith with the indigenous peoples
concerned through their own representative institutions in order to obtain their
free, prior and informed consent before adopting and implementing legislative or
administrative measures that may affect them.

Article 23 Indigenous peoples have the right to determine and develop
priorities and strategies for exercising their right to development. In
particular, indigenous peoples have the right to be actively involved in
developing and determining health, housing and other economic and social
programmes affecting them and, as far as possible, to administer such programmes
through their own institutions.

Article 32

1. Indigenous peoples have the right to determine and develop priorities and
strategies for the development or use of their lands or territories and other
resources.

2. States shall consult and cooperate in good faith with the indigenous
peoples concerned through their own representative institutions in order to
obtain their free and informed consent prior to the approval of any project
affecting their lands or territories and other resources, particularly in
connection with the development, utilization or exploitation of mineral, water
or other resources.

How does the right to self-determination inform Indigenous
wellbeing?

But having explained this concept of self-determination let me speak more
directly on how the right to self-determination can inform this discussion of
wellbeing. To do that let me step back first to see the benefit of a human
rights framework in this discussion on wellbeing.

The human rights framework identifies the fundamental values and standards
necessary for people to achieve our full wellbeing, in relation to health,
education, housing, participation, and culture. Comparative analysis across OECD
countries has shown that there is a strong correlation between countries that
have a high level of recognition of human rights also have a high level of
positive wellbeing.^[30]

The right to self-determination, enables the debate on Indigenous wellbeing
to be taken beyond the discussion of just jobs and employment, to understanding
a holistic sense of wellbeing that also includes the non-economic areas of
wellbeing such as social and political participation and culture.

Aboriginal wellbeing is ensured through the protection of rights to tangible
and intangible cultural practices and is seen to be culturally based, existing
through an intergenerational continuation of cultural knowledges and
practices.^[31]

As Kerry Arabena has commented, the challenge of 'being Indigenous' is a
crucial issue for Aboriginal and Torres Strait Islander people today. Who we
are, and how we live, is framed by artificial, state-created identities that
resist and minimise the recognition that is provided to our cultures, our
history, our capacities to contribute and our on-going connection to the land
and sea.

The recognition of the right to self-determination at a practical level could
generate greater participation in decision-making processes, and create a space
for dialogue between government and community.

Where people have participated in the process they are often more supportive
and dedicated to the outcomes, thus generating greater respect for
representative democratic institutions and processes and greater social
solidarity overall.^[32]

Self-determination is not just about consultation, it is about empowering
Aboriginal and Torres Strait Islander peoples to take control of our own affairs
in all aspects of our lives. Such as:

• self-governance at the local level,

• participation in the design, delivery, and monitoring of
  programmes,

• developing culturally-appropriate programmes that incorporate or
  build on indigenous peoples’ own initiatives.

For Indigenous
peoples particularly, given the history of lack of consultation, lack of
participation and lack of engagement in government policy making and program
development to date, the recognition of the right to self-determination provides
an important foundation for promoting Indigenous peoples’ democratic
inclusion and improved accountability.^[33]

For Indigenous wellbeing, this means participation in the development of
definitions wellbeing, that are informed by Indigenous world views,
participation in the development of the measuring frameworks that assess the
progress of achieving wellbeing, and participation in the design and
implementation of the policies and programs that are put in place to achieve
Indigenous wellbeing.

The formation of the new National Congress for Australia’s First
Peoples will have an important role to play in advancing this level of
participation of Aboriginal and Torres Strait Islander peoples being involved in
assessing what policies and programs are most needed for achieving Indigenous
wellbeing.

Thus the right to self-determination, as others have also
argued^[34] becomes the pre-requisite
element for Indigenous wellbeing. Similarly, for indigenous peoples, the right
to self-determination is a pre-requisite for the exercise of our social,
cultural, economic and political rights.

At this year’s Permanent Forum
Session, there was an active debate on addressing the development of Indigenous
peoples that is embedded in the right to self-determination. The theme was
‘development with culture and identity’.

‘Development with culture and identity’ is a process that
includes the strengthening of indigenous peoples, harmony and sustained
interaction with their environment, sound management of natural resources and
territories, the creation and exercise of authority, and respect for the rights
and values of indigenous peoples, including cultural, economic, social and
institutional rights, in accordance with their own worldview and
governance.^[35]

The challenge for the strategy lies in supporting and promoting development
initiatives and organizational systems unique to indigenous peoples in order to
improve their living conditions through their own leadership and in a manner
consistent with each community’s specific socio-cultural situation and
vision. This means greater access, with gender equality, to socioeconomic
development opportunities that strengthen identity, culture, territoriality,
natural resources and social organization, and reduce material poverty and
marginalisation.^[36]

This approach for addressing wellbeing was also supported by the Special
Rapporteur on Indigenous Peoples, Mr James Anaya. In his report on Australia he
noted the need to develop new social and economic initiatives and to reform
existing ones to allow respect for cultural integrity and self-determination. He
recommended indigenous participation in the design, delivery, and monitoring of
programmes, and promoting culturally-appropriate programmes that incorporate or
build on indigenous people’s own
initiatives.^[37]

He noted that governmental programmes such as Closing the Gap must secure not
just social and economical wellbeing for indigenous peoples, but also advance
Indigenous peoples' rights to self-determination and their rights to maintain
their distinct cultural identities, languages and connections, with their
traditional lands.^[38]

Conclusion

Having formally supported the Declaration, the Australian Government
now needs to shift its attention to the implementation of the provisions of the
Declaration. Key to its implementation in Australia will be government support
for Indigenous peoples to realise their own development through initiatives that
develop their right to self-determination. To this end the government can play a
positive role by reviewing its policies, programs and mechanisms for service
delivery, in line with the rights recognised under the UN Declaration on the
Rights of Indigenous Peoples.

Indigenous peoples have the right to define and decide on their own
development priorities. This means they have the right to participate in the
formulation, implementation and evaluation of plans and programmes for national
and regional development that may affect them. This principle is re-affirmed as
one of the objectives of the Second International Decade on the World’s
Indigenous People. The principle requires that UN programmes and projects also
take measures to involve indigenous peoples in all stages of the development
process.^[39]

A central tenet of Indigenous peoples’ rights is our right to effective
participation in policies that affect us. The ‘human person is the central
subject of development and should be the active participant and beneficiary of
the right’.^[40]

To conclude, I have today tried to share my journey of understanding of how a
human rights approach, embedded in right to self-determination, as recognised in
the Declaration, can inform the future development of Indigenous wellbeing.

The advantages of rights based approach is that it enables a holistic
approach to wellbeing to be adopted. One that recognises the full set of
political, social, economic and cultural rights. It also, as the Close the Gap
Campaign has shown, enables a rights based approach to development to be
adopted, one that sets concrete targets against which the progressive
realisation of the right can be measures, and one that enables Indigenous
people’s agency to be paramount. Most importantly, a rights based approach
incorporates the right of Indigenous peoples to participate in the definition of
Indigenous wellbeing, participate in the development of Indigenous wellbeing
indicators and measurement frameworks and participate in the development design
and implementation of policies and programs for their own wellbeing. Thus
valuing and recognising the strengths that Indigenous peoples bring to this
discussion.

Thank you.

---

^[1] Preamble to the Constitution of
the World Health Organization as adopted by the International Health Conference,
New York, 19-22 June, 1946; signed on 22 July 1946 by the representatives of 61
States (Official Records of the World Health Organization, no. 2, p. 100) and
entered into force on 7 April 1948. At http://www.who.int/about/definition/en/print.html (viewed 25 June 2010).

^[2] Cooperative Research Centre for Aboriginal Health, Listening to Aboriginal
voices: Valuing Aboriginal solutions to Aboriginal health - Social and emotional
well being program statement (2006), p 3. At http://www.crcah.org.au/research/socialandemotionalwellbeing.html (viewed 25 June 2010).

^[3] South
Australian Aboriginal Health Partnership. Aboriginal Health –
Everybody’s Business; Social and Emotional Wellbeing. A South Australian
Strategy for Aboriginal and Torres Strait Islander People 2005-2010, p 6. At http://www.health.sa.gov.au/Default.aspx?tabid=58.
Cited in Cooperative Research Centre for Aboriginal Health, Listening to
Aboriginal voices: Valuing Aboriginal solutions to Aboriginal health - Social
and emotional well being program statement (2006), p 2. At http://www.crcah.org.au/research/socialandemotionalwellbeing.html (viewed 25 June 2010).

^[4] Social
Health Reference Group, National Strategic Framework for Aboriginal and
Torres Strait Islander Peoples’ Mental Health and Social and Emotional
Well Being 2004-2009 (2004), p
9.

^[5] Swan & Raphael, Ways
forward (1995) cited in Office for Aboriginal and Torres Strait Islander
Health, Social and Emotional Wellbeing Framework (2004-2009) (2004), p 7.

^[6] J Atkinson, Healing
Relationships between People and Country (speech given at the Wollumbin
Dreaming Festival, 2002).

^[7] UN
Development Programme, Human Rights Development Reports. At http://hdr.undp.org/en/ (viewed 25 June
2010).

^[8] Australian Bureau of
Statistics, National Aboriginal and Torres Strait Islander Social Survey (2009). At http://www.abs.gov.au/Ausstats/abs@.nsf/0d21d0868273a2c3ca25697b00207e97/9ad558b6d0aed752ca256c7600018788!OpenDocument (viewed 25 June 2010).

^[9] Productivity Commission, Overcoming Indigenous Disadvantage Report: Key
Indicators 2009 (2009). At http://www.pc.gov.au/gsp/reports/indigenous/keyindicators2009 (viewed 25 June 2010).

^[10] K
Jordan, G Buchanan, H Bulloch, K May Wellbeing and Indigenous
Australians, CAEPR Seminar, 28 February 2010 (podcast). At http://caepr.anu.edu.au/Seminars/09/Seminar-Topics%E2%80%94Series-1/10_6_Seminar.php (heard 25 June 2010).

^[11] K
Jordan, G Buchanan, H Bulloch, K May Wellbeing and Indigenous
Australians, CAEPR Seminar, 28 February 2010 (podcast). At http://caepr.anu.edu.au/Seminars/09/Seminar-Topics%E2%80%94Series-1/10_6_Seminar.php (heard 25 June 2010).

^[12] In 2007, the Council of
Australian Governments (COAG) committed to closing the gap in life outcomes and
opportunities between Aboriginal and Torres Strait Islander and non-Indigenous
Australians. In November 2008, COAG endorsed the National Indigenous Reform
Agreement (NIRA) for implanting this policy.

^[13] K Pholi, D Black, C
Richards, ‘Is ‘Close the Gap’ a useful approach to improving
the health and wellbeing of Indigenous Australians?’ (2009) Vol 9, No 2, Australia Review of Public Affairs,
p10.

^[14] J Taylor,
‘Indigenous Peoples and Indicators of Well-being: Australian Perspectives
on United Nations Global Frameworks’ (2008) Issue 87 Social Indicators
Resource 111-126, p123.

^[15] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2005 (2005) ch
2.

^[16] Committee on Economic,
Social and Cultural Rights, General Comment 14: The right to the highest
possible attainable standard of health (art 12), UN Doc: E/C.12/2000/4
(2000). At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/40d009901358b0e2c1256915005090be?Opendocument (viewed 25 June 2010).

^[17] International Covenant on Economic, Social and Cultural Rights, opened
for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976)
art 2(1); Committee on Economic, Social and Cultural Rights, General Comment
3: The nature of States parties obligations (Art. 2, par.1) UN Doc:
HRI/GEN/1/Rev.6 at 14 (1990). At http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+comment+3.En?OpenDocument (viewed 25 June 2010).

^[18] Close
the gap Indigenous Health Equality Summit, Statement of Intent, 20 March
2008. At http://www.hreoc.gov.au/social_justice/health/statement_intent.html (viewed 25 June 2010).

^[19] UN
Permanent Forum on Indigenous Issues, Indigenous Peoples´ Indicators of
Well-being, Poverty and Sustainability (2008), p 10. At http://www.un.org/esa/socdev/unpfii/en/session_seventh.html (viewed 25 June 2010).

^[20] UN
Department of Economic and Social Affairs, State of the World’s
Indigenous Peoples, UN Doc ST/ESA/328 (2009), p 42. At http://www.un.org/esa/socdev/unpfii/en/sowip.html (viewed 25 June 2010).

^[21] UN
Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295, UN
Doc: A/61/L.67 (2007). At http://www.iwgia.org/sw248.asp (viewed
25 June 2010).

^[22] Hon Jenny
Macklin MP, Minister for Families, Housing, Community Services and Indigenous
Affairs, Statement on the United Nations Declaration on the Rights of
Indigenous Peoples, Parliament House, Canberra (3 April 2009). At http://www.jennymacklin.fahcsia.gov.au/statements/Pages/un_declaration_03apr09.aspx (viewed 25 June 2010).

^[23] United Nations Declaration on the Rights of Indigenous Peoples, GA
Resolution 61/295, UN Doc: A/61/L.67 (2007), preambular paras 2 and 3. See also
J Anaya, International Human Rights and Indigenous Peoples (2009).

^[24] United Nations
Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295, UN
Doc: A/61/L.67 (2007), preambular para
18.

^[25] E Daes 'Striving for
self-determination for Indigenous peoples' in Y Kly and D Kly (eds), In
pursuit of the right to self-determination (2000), p
58.

^[26] J Anaya, Indigenous
Peoples in International Law (2004).

^[27] Aboriginal and
Torres Strait Islander Social Justice Commissioner, Social Justice Report
2002, Human Rights and Equal Opportunity Commission (2002), p
28-30.

^[28] J Anaya, Indigenous Peoples in International Law (2004).

^[29] Aboriginal and
Torres Strait Islander Social Justice Commissioner, Social Justice Report
2002, Human Rights and Equal Opportunity Commission (2002), p
20.

^[30] M Salvaris,
‘Economic and Social Rights: the Victorian Charter’s Unfinished
Business’, Just Policy, (2007) 43, 30-49.

^[31] Grieves (2006:18-19) cited
in K Arabena, Indigenous Epistemology and Wellbeing: Universe referent
citizenship, AIATSIS Research Discussion Paper Number 22 ((2008), p 5.

^[32] M Castan and D Yarrow,
Castan Centre for Human Rights Law, Memorandum to R Inglis, Victorian Aboriginal
Legal Services, 1 February
2006.

^[33] M Castan and D Yarrow,
Castan Centre for Human Rights Law, Memorandum to R Inglis, Victorian Aboriginal
Legal Services, 1 February
2006.

^[34] F Panzironi, Indigenous peoples’ right to self-determination and development
policy (2006).

^[35] Inter-American Development Bank, Operational Policy on Indigenous Peoples and
Strategy for Indigenous Development (2006), p 5.

^[36] Inter-American Development
Bank, Operational Policy on Indigenous Peoples and Strategy for Indigenous
Development (2006), p 20.

^[37] Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, Addendum: The Situation of Indigenous Peoples in
Australia UN Doc, A/HRC/15 (2010) para 72, 91.

^[38] Special Rapporteur on the
situation of human rights and fundamental freedoms of indigenous people, Addendum: The Situation of Indigenous Peoples in Australia UN Doc,
A/HRC/15 (2010) p 2.

^[39] United
Nations Development Group, Guidelines on Indigenous Peoples' Issues (2008) p 14. At
http://www2.ohchr.org/english/issues/indigenous/docs/guidelines.pdf (viewed 25
June 2010).

^[40] Aboriginal and
Torres Strait Islander Social Justice Commissioner, Social Justice Report
2007 (2007), p 241. At http://humanrights.gov.au/social_justice/sj_report/sjreport07/chap3.html#fnB66 (viewed 25 June 2010).