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Social Justice Report 2006: Information Sheet 5: Developments on Indigenous human rights: Closing the ‘protection gap’

Social Justice Report 2006

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  • Information Sheet
    5:
    Developments on Indigenous human rights: Closing the ‘protection
    gap’

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    In recent years there have been significant developments
    at the international level that impact upon the recognition and protection of
    the human rights of Indigenous peoples.

    The international community is increasingly focusing on
    the need to address the ‘protection gap’ between the commitments of
    governments relating to human rights and their activities on the ground.

    Recent developments

    • UN reform

    The UN World Summit in
    September 2005 saw all governments agree to integrate the promotion and
    protection of human rights into national policies and to support the further
    mainstreaming of human rights throughout the United Nations
    system.



    The creation of the Human Rights
    Council has raised challenges to maintain the capacity for direct participation
    of and engagement with Indigenous peoples on human rights issues. There remain
    many issues that require the further elaboration of Indigenous rights through
    the international human rights system. These include: guidelines on the
    protection of Indigenous heritage, the application of the principle of free,
    prior and informed consent, and the guidelines and monitoring for the
    implementation of the Declaration on the Rights of Indigenous Peoples.



    The creation of the Human Rights Council
    also provides opportunities for Indigenous peoples to further promote their
    human rights, particularly through the new universal periodic review mechanism.

    • The mainstreaming of human rights across the UN and
      participatory development
      practices

    Accompanying these
    reforms to the UN structure have been sustained efforts to mainstream human
    rights across the UN by integrating them into all policies and programs.



    Recent developments in international law
    (through binding treaty obligations) and UN policy and practice demonstrate the
    increased acknowledgement and reliance on human rights as providing a framework
    for proactively addressing existing inequalities within society and for
    recognising and protecting the distinct cultures of Indigenous
    peoples.

    The emerging principle of free, prior
    and informed consent is increasingly emerging as a practical methodology within
    the UN system for designing programs and projects, which either directly or
    indirectly affect Indigenous peoples.



    Both
    the Permanent Forum and the Working Group on Indigenous Populations (WGIP) have
    emphasised that the principle of free, prior and informed consent brings
    together, or synthesises, the active legal obligations of States under existing
    international human rights law.



    In relation
    to development projects affecting Indigenous peoples’ lands and natural
    resources, the respect for the principle of free, prior and informed consent is
    important so that:

      • Indigenous peoples are not coerced, pressured or
        intimidated in their choices of development;
      • Their consent is sought and freely given prior to the
        authorization and start of development activities;
      • Indigenous peoples have full information about the
        scope and impacts of the proposed development activities on their lands,
        resources and well-being; and
      • Their choice to give or withhold consent over
        developments affecting them is respected and upheld.

    • Global commitments to action: The Millennium
      Development Goals (MDGs) and Indigenous
      peoples

    Concerns remain that
    after five years of implementation, there is insufficient focus on the
    application of the MDGs to Indigenous peoples and also within developed
    countries.



    Efforts are needed at the
    national, regional and international levels to achieve the Millennium
    Development Goals with the full participation of Indigenous communities without
    interfering with their development paths and their holistic understanding of
    their needs. Such efforts must take into account the multiple levels and sources
    of the discrimination and exclusion faced by Indigenous peoples.

    • Global commitments to action: The Second
      International Decade of the World’s Indigenous
      People



    On 20 December 2004, the
    UN General Assembly proclaimed the Second International Decade of the
    World’s Indigenous People. The Decade commenced on 1 January 2005 and runs
    until 2015.



    The Program of Action for the
    Second Decade approves five key objectives for the Decade:

    1. Promoting non-discrimination and inclusion of
      Indigenous peoples in the design, implementation and evaluation of
      international, regional and national processes regarding laws, policies,
      resources, programmes and projects.
    2. Promoting full and effective participation of
      Indigenous peoples in decisions which directly or indirectly affect their
      lifestyles, traditional lands and territories, their cultural integrity as
      Indigenous peoples with collective rights or any other aspect of their lives,
      considering the principle of free, prior and informed consent.
    3. Redefining development policies that depart from a
      vision of equity and that are culturally appropriate, including respect for the
      cultural and linguistic diversity of Indigenous peoples.
    4. Adopting targeted policies, programmes, projects and
      budgets for the development of Indigenous peoples, including concrete
      benchmarks, and particular emphasis on Indigenous women, children and
      youth.
    5. Developing strong monitoring mechanisms and enhancing
      accountability at the international, regional and particularly the national
      level, regarding the implementation of legal, policy and operational frameworks
      for the protection of Indigenous peoples and the improvement of their
      lives.



    Overall, the objectives and
    the Program of Action of the Second Decade provide a focused framework for
    achieving the protection of the rights of Indigenous peoples internationally and
    domestically over the coming decade.



    The UN
    Permanent Forum on Indigenous Issues has stated its intention to use its
    coordination role within the UN to promote an integrated approach to the Second
    Decade and the MDGs, so that they are complementary and mutually reinforcing.

    • Recognition of Indigenous specific
      rights

    Indigenous peoples have
    advocated the need for additional, specifically defined forms of recognition due
    to the existence of a ‘normative protection gap’ in the
    international system.



    The process of
    elaborating specific human rights norms that are applicable to Indigenous
    peoples began over 20 years ago. The outcomes of this advocacy are reflected in
    the UN Declaration on the Rights of Indigenous Peoples.



    The Declaration is of utmost importance to
    combat discrimination against Indigenous peoples. It does not create new rights.
    It elaborates upon existing international human rights norms and principles as
    they apply to Indigenous peoples. The Declaration was adopted by the Human
    Rights Council on 29 June 2006 and is currently being considered by the General
    Assembly of the UN.



    The ‘protection
    gap’ in Australia




    There is a clear
    lack of consistency between existing policies and approaches to Indigenous
    issues in Australia, and the international legal obligations and developments
    outlined above.



    The human rights system
    provides a framework for governments to encourage the adoption of proactive
    measures to create an enabling framework for the active engagement of all
    citizens through partnerships, shared decision-making and ultimately shared
    responsibility for outcomes. By comparison, the current approach of the federal
    Government pre-determines the priorities without engagement of Indigenous
    peoples, and therefore provides a passive system for service delivery and
    policy design. The irony of this approach is that it is a system which
    constantly attacks Indigenous peoples for being passive recipients, and yet it
    is in itself, resistant to any form of active engagement.



    The ability of Indigenous Australians to
    build on the widespread reforms in UN practice is further impeded by there being
    no formalised process for engagement with the government, which automatically
    creates a gap between principles of international law and domestic legal
    practice.



    There is a key role for NGOs and
    the Indigenous community sector to bridge the ‘protection gap’. The
    existence of an information gap within civil society on human rights is a major
    barrier to achieving this. Not only is there is a lack of understanding about
    human rights by Indigenous peoples, but government currently provides only
    limited support to Indigenous communities to build their capacity to understand
    and advocate for their rights.



    The report
    makes several recommendations to address these issues, namely:

    • Identification of a focal point within the federal
      Government to coordinate, on a whole of government basis, its Program for the
      Second Decade of the World’s Indigenous Peoples and for identifying
      contact points within federal departments on the subject matters of
      international negotiations;
    • That the non-government sector, led by members of the
      Australian Council for International Development as appropriate, engage with
      Indigenous organisations and the IPO Network to build partnerships for the
      implementation of the Second International Decade;
    • That the Department of Foreign Affairs, in conjunction
      with the Social Justice Commissioner, conduct regular briefings for all agency
      heads on developments on the rights of Indigenous peoples, including the right
      to development, Millennium Development Goals and Second International Decade for
      the World’s Indigenous People.