Questions and answers on the UN Declaration on the Rights of Indigenous Peoples
On Friday 3 April 2009, the Australian Government will make a statement in support of the United Nations Declaration on the Rights of Indigenous Peoples. This will reverse Australia’s previous opposition to the Declaration. Under the Coalition Government, Australia was one of four countries that voted against the Declaration when it was adopted by the United Nations General Assembly in September 2007.
This Q & A factsheet is aimed at informing Australians about the Declaration and addressing some myths that have been raised in the lead up to the Government’s statement of support for the Declaration.
What is the Declaration on the Rights of Indigenous Peoples?
The Declaration is a set of principles which describe equality, non-discrimination, partnership, consultation and cooperation between Indigenous peoples and governments. It is a comprehensive standard on human rights for Indigenous Peoples. The Declaration is not legally binding and it does not compel governments to certain actions. Rather, it is an aspirational human rights instrument that explicitly encourages harmonious and cooperative relations between governments and Indigenous peoples.
Article 46 of the Declaration states that the ‘Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith’.
For an overview of the Declaration see: http://humanrights.gov.au/social_justice/declaration/fact_sheet1.html
To access the Declaration see: http://humanrights.gov.au/social_justice/declaration/assembly.html
Does the Declaration create new rights for Indigenous peoples?
No. The Declaration does not create new rights. Rather, it elaborates upon existing international human rights norms and principles as they apply to Indigenous peoples.
If it doesn’t create new rights, what is the use of the Declaration?
It is a sad reality that wherever Indigenous peoples live in the world, they experience violations of their human rights and often experience poverty and disadvantage to a greater extent than the rest of the population in the countries in which they live. While Indigenous peoples are entitled to the full protection of the individual human rights system that has existed for the past sixty years, their rights continue to be violated. For this reason, governments of the world have agreed on the need to specifically identify those specific issues that Indigenous peoples face to improve how their rights are protected.
The Declaration brings together the pre-existing rights that are relevant to Indigenous peoples into one coherent document. According to the Office of the High Commissioner for Human Rights it also:
catalogues the kinds of violations that have historically plagued and, sadly, continue to plague Indigenous Peoples around the world. In particular, there are attacks upon their culture, their land, their identity, and their own voice. The Declaration has remarkable detail on issues like ‘cross-border’ relations and discrimination suffered by indigenous groups. In short the Declaration lays out the minimum standards for the ‘survival, dignity and well being of Indigenous Peoples’. That, itself, is language taken from the Declaration and is proof enough of the practical value of the instrument.
This is an extremely important function in the Australian context, given the historical discrimination and dispossession of Indigenous people over past centuries.
What is the value of the Declaration to Aboriginal and Torres Strait Islander peoples?
The Declaration is a positive, aspirational document that sets out ambitions for a new partnership and relationship between Indigenous peoples and the government.
- affirms that indigenous peoples make a unique contribution to the diversity and richness of civilisations and cultures, and promotes cultural diversity and understanding;
- explicitly encourages harmonious and cooperative relations between States and indigenous peoples, as well as mechanisms to support this at the international and national levels; and
- is based upon principles of partnership, consultation and cooperation
between indigenous peoples and States.
This is consistent with the aspirations expressed by the current Australian Government through the National Apology, the Statement of Intent to Close the Gap and in supporting the establishment of a new National Indigenous Representative Body.
Does the Declaration elevate customary law over Australian law or individual rights?
No. There is no legal force to the Declaration and so it cannot elevate customary law over Australian law. A question that is perhaps more relevant is whether customary law can be recognised or accommodated under the Australian legal system? Currently there is some limited recognition of customary law under some Commonwealth, state and territory laws, although recent amendments to Commonwealth and Northern Territory laws have further limited existing recognition.
Under the international human rights system, collective rights such as customary law rights must be read and interpreted consistently with all other human rights.
Article 1 of the Declaration states that ‘Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law’. This means that the collective rights of indigenous peoples (which include customary law recognition) are to be applied consistently with individual rights. Individual rights include the right for example, for women and children to be free from violence. In the case of customary marriage, the individual right of a woman to reject marriage is protected under Australian law and under the articles of the Declaration and other human rights instruments. In fact the Declaration is among the first international human rights instruments to explicitly provide for the adoption of measures to ensure that indigenous women and children enjoy protection and guarantees against all forms of violence.
Furthermore, Article 34 of the Declaration states that ‘Indigenous peoples have the right to promote, develop and maintain their... distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs’ but must do so ‘in accordance with international human rights standards’.
Does the Declaration mean that Indigenous people can set up separate education systems?
No. All Australian schools must be registered and comply with standards and conditions set by the laws and policies of Australian States and Territories. State and Territory laws also apply to compulsory school ages, and according to the laws of each jurisdiction, they are enforceable regardless of race or culture. It is within these parameters that the Declaration operates. At Article 14 the Declaration states that Indigenous people have the right to their own schools where Indigenous students are instructed in their own languages and taught their own cultures. The few Bilingual schools that currently operate in Australia comply with the laws and regulations of governments while ensuring that Indigenous students can exercise their rights to learn their languages and culture.
Does ‘self determination’ give Indigenous people the right to secede?
No. International law does not support a unilateral right to secession. The terminology used in the Declaration does not jeopardize the territorial integrity of nation states. The Declaration itself provides guarantees against secession. Article 46(1) makes specific reference to the territorial integrity of nation states by stating that ‘Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations’ or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.’
Does the Declaration give Indigenous peoples greater rights to land beyond those specified in the Native Title Act?
The Declaration requires that governments and Indigenous peoples engage in just and fair processes to negotiate ownership, control and compensation in relation to lands, waters and resources. Article 27 of the Declaration urges governments to establish a ‘fair, independent, impartial, open and transparent process... to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used’. This provision was inserted into the Declaration during the final negotiations by the previous Australian Government.
Arguably, the Native Title Act and various land rights acts across the country do this. The Declaration may provide additional impetus for further dialogue about the effectiveness of the Native Title Act.
Will the Declaration have an impact on public policy and confer rights upon one sector of the Australian community to the exclusion of all others?
Governments currently have discretion to develop policy for the benefit of groups of citizens. The Declaration itself does not confer additional powers on governments to act in the interests of Indigenous peoples. However, it is the responsibility of governments to redress disadvantage through policy. In some instances governments develop policies or special measures which provide specific assistance to groups of citizens who have suffered substantial disadvantage.
What happens in cases where there are different interpretations of rights between government and Indigenous Australians?
The Declaration can be used as an instrument to discuss, interpret and resolve rights. It provides an even-handed articulation of Indigenous rights within the context of existing nation states institutions. The Declaration describes the requirements for respect for indigenous institutions, on the one hand, but also equality before official institutions on the other hand. It describes both the recognition of Indigenous identity, on the one hand, but also the right to national citizenship on the other hand. It describes respect for traditional justice systems, on the one hand, but also requires access to national justice systems on the other hand. This very balanced ‘choice’ approach to human rights is codified in countless human rights instruments. In relation to Indigenous peoples it is now very clearly laid out in one Declaration. The Declaration is in fact a point of dialogue, negotiation and mutual understanding about the rights and responsibilities of Indigenous peoples and nation states. As the preamble to the Declaration states, it is ‘a standard of achievement to be pursued in a spirit of partnership and mutual respect’.
For more information, please visit the Australian Human Rights Commission’s website: www.humanrights.gov.au/social_justice/declaration/
 Extracted from Mokhiber, C, Declaration a historic document, out of a historic process, Panel Presentation, New York, 4 November 2006, available online at: http://www.ipcaucus.net/Mokhiber.html. For further information on the panel discussion see; http://www.ipcaucus.net/Panel_061026.html.
 Explanatory Memorandum Crimes
Amendment (Bail And Sentencing) Bill Commonwealth of Australia. At http://www.austlii.edu.au/au/legis/cth/bill_em/caasb2006308.txt/cgi-bin/download.cgi/download/au/legis/cth/bill_em/caasb2006308_3.txt,
viewed 31 March 2009.
 See further: Commission on Human Rights, Conference Room Paper – 11th session of the Working Group on the Declaration on the Rights of Indigenous Peoples: International workshop on the draft United Nations Declaration on the Rights of Indigenous Peoples, Patzcuaro, Michoacán, Mexico, 26 – 30 September 2005, UN Doc: E/CN.4/2005/WG.15/CRP.1, 29 November 2005, pp6-7.