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Questions and answers on the UN Declaration on the Rights of Indigenous Peoples (2009)

Questions and answers on the UN Declaration on the Rights of Indigenous
Peoples

April 2009


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.[1]

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.

The Declaration:

  • 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.[2]

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.[3] 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/


[1] 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.

[2] 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.

[3] 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.