Time to Get Real with the UN Declaration on the Rights of Indigenous Peoples

Almost a year ago to the day, on 13 September 2007, the Declaration on the Rights of Indigenous Peoples was adopted by the United Nations General Assembly.  The Declaration enshrines a body of core minimum principles and common sense values, including the rights of Indigenous peoples to non-discrimination, freedom from genocide, forced assimilation and destruction of culture, intended to ensure Indigenous peoples can live with dignity and participate in and contribute to the broader community. 143 UN member nations voted for it.  4 voted against it – Canada, New Zealand, the United States and Australia. Australia’s opposition was vehement.  Regrettably, this and subsequent commentary have had more to do with perpetuating myths than debunking them, however honestly those views are held.

According to Glenn Milne (The Australian, 10 March 2008) Australia, Canada, New Zealand and the United States opposed the Declaration because, unlike the countries that embraced it, they have substantial Indigenous populations.  But so do the vast majority of the 143 countries that supported it – including most of the Latin American countries staunchly in favour.  Unlike Canada, New Zealand the United States, Australia has no pre-existing human rights based instruments with its Indigenous peoples.  And, amongst those countries as well, Australia has by far the highest rates of Indigenous incarceration and by far the lowest rates of Indigenous life expectancies.  Whether that stems from Australia’s lack of an Indigenous human rights instrument is of course a matter of debate.

According to The Australian on 23 August, in a speech to the Samuel Griffith Society that weekend, the Shadow Attorney General Senator George Brandis reportedly holds the view the Declaration includes provisions ‘that go well beyond the rights recognised in Australian domestic law’.  Claiming the Declaration requires Indigenous consent before approval of any projects affecting their land, without providing recognition for the rights of third parties, Senator Brandis also contends the Declaration ‘not only seeks to set the interests of Indigenous people at a higher level than that enjoyed by the rest of the population, but beyond the extended regime in the Native Title Act’.

Senator Brandis is passionate about this issue and has expressed his opinions articulately.  But if that is indeed what Senator Brandis said, he is categorically wrong.  Article 46(1) of the Declaration could not be any clearer.  Nothing in the Declaration

may be ‘construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states’.

That means domestic laws prevail over the Declaration.  And they always will.

Beyond this, there has been much misinformation, bordering on scaremongering, about the Declaration – from claims it will enable Aboriginal people to secede from the rest of Australia, to warnings it will give Aboriginal people special rights that are taken away from the rest of the population.

It is disappointing that the hysteria always seems to occur when important Indigenous matters of State are concerned. Has anyone’s backyard been attacked in the years since the belated recognition of native title in Australia in 1992?  Did the ‘bucket loads of extinguishment’ of native title help the cause of reconciliation or ‘close the gap’ in the decade following the 10 point plan in 1998?  And what has become of the flood of compensation the country was warned to brace for immediately in the wake of this years’ apology?

As so much good will and as so much momentum is invariably lost debating the wrong issues, its time we all did our best to separate some of the important facts from fiction.

Fiction – By recognising a right to self determination the Declaration will create a separate Indigenous state within Australia and threaten Australia’s territorial integrity.

Fact – A right of self determination will not lead to a separate Indigenous state.  It simply allows Indigenous peoples to freely determine and pursue their political, economic, social and cultural development, subject to existing national laws.  Put another way, it allows for Indigenous peoples to freely develop their own agendas, from the ‘ground up’, rather than having them forced upon them from the ‘top down’.

Fiction – The Declaration creates an Indigenous right to veto over development activities.

Fact – The Declaration does not create a right of veto.  The extent to which Indigenous peoples can have a say on matters impacting on their identity and their country will be determined by existing domestic laws.

Fiction – The Declaration creates new rights for Australian Indigenous peoples through the back-door, including new rights to compensation, far beyond what currently exists under Australian law.

Fact – There are no new rights contained in the Declaration.  Take again the right of self-determination – it is already contained in human rights instruments to which Australia is a party, such as the ICCPR and the ICESCR and they certainly have not resulted in any secession.  The principles enshrined in the Declaration of justice, democracy, respect for human rights, non-discrimination and good faith and the rights of redress and compensation for lands taken without the free, prior and informed consent of the peoples concerned, have always existed, ever since the adoption of the Universal Declaration of Human Rights.  The Declaration serves a very useful purpose of codifying and articulating them in the context of Indigenous peoples.

As one of only 4 states to vote against the Declaration, Australia’s opposition to it in 2007 continues to threaten the country’s standing, legitimacy and authority on human rights issues, both internationally and regionally, precisely at the time when Australia is seeking to establish itself as an effective international citizen, a middle power leader, and an authority on human rights, democracy and the rule of law in the region.

Australia’s long held opposition to the Declaration now looks set to change, with the Commonwealth expected shortly to formalise its support.  When it’s taken, the step of formally, albeit belatedly, supporting the Declaration will be very powerful symbolism for Australia.  And it will of course strengthen, not diminish, our reputation within the international community as a country at the vanguard of promoting and protecting the basic human rights of all, particularly the most disenfranchised.

There are some wonderful reconciling opportunities presented by the Declaration, with its emphasis on Indigenous and non-Indigenous partnerships, consultation, cooperation and mutual respect.  Now is the time to have a healthy discussion about the Declaration, to allow those opportunities to shine through.

A properly resourced, widespread education campaign about the Declaration is what is needed right now more than ever, to help all Australians, Indigenous and non-Indigenous, reach an informed understanding of its substance.  Only then will the facts be able to speak for themselves.

Peter Seidel is a Partner in Public Interest Law with Arnold Bloch Leibler