The United Nations General Assembly’s adoption of the Declaration on the Rights of Indigenous Peoples is a triumph for the world’s 300 million Indigenous peoples.
It is a particularly important development for Aboriginal and Torres Strait Islander peoples in Australia. With each backward step taken by the Coalition: the discriminatory amendments to the Native Title Act in 1998; the abolition of ATSIC; the intervention in the Northern Territory; the winding back of land rights and the absolute prohibition on the use of customary law in bail sentencing, the Federal government has incrementally institutionalised its ideological rejection of the inherent rights of Indigenous peoples.
The Prime Minister’s recent glib assertion that while we are “special”, our future “lies with mainstream Australia” confirms that. Yet the UN General Assembly’s decision to adopt the Declaration is an unequivocal and emphatic rejection by the international community of the Coalition’s old fashioned and outdated, assimilationist thinking on Indigenous rights.
The Declaration is unique within the UN system because it recognises in international law, Indigenous peoples inherent rights including the right to self-determination and the collective right of Indigenous peoples to enjoy and realise fundamental rights and freedoms.
The Minister for Indigenous Affairs, Mal Brough misled the public by insisting that the Declaration elevates Aboriginal customary law and other Indigenous rights above national law. The Declaration does no such thing. It is in fact a non-binding human rights instrument of the General Assembly. This means that it has no status in the Australian legal system and cannot elevate customary law or any other Indigenous right over domestic law.
The Declaration is aspirational because it elaborates upon standards that states and their public institutions should aspire to and respect and achieve in their relationships with Indigenous communities and organisations. It is an instrument of dialogue and creates no new rights in international law: rather it establishes a framework of those human rights that already exist in international law as they apply to Indigenous peoples.
The specious argument that self-determination invites secession or a separate Aboriginal state is also mischievous. The concern about the right to self-determination has been appropriately addressed in the Declaration which painstakingly safeguards the sovereignty and territorial integrity of the state. In fact the Declaration is subject to all existing principles of international law which renders the secession arguments nugatory. The text also provides that the rights contained within must be read in accordance with principles of justice, democracy, respect for human rights, equality and non-discrimination.
Given that the Declaration specifically provides that all states shall take measures to ensure that Indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination, one would assume that the Federal government, for whom the rights of the Indigenous child are ostensibly paramount would have been supportive of its adoption.
It is true that the Working Group was hamstrung by protracted debate, intransigent states and occasionally ill conceived Indigenous negotiation strategies, but since 2004, states and Indigenous peoples have worked closely together to reach consensus and seek agreement and compromise on the text. While most states abandoned polemic to ensure the safe passage of the Declaration through the Human Rights Council in 2006, Australia and the United States remained the most defiant. It is true, as Canada’s Toronto Globe and Mail reported that “The US and Australia had become so isolated that in the last few UN sessions, when they were attempting to put their proposals on the floor, they were all but being shouted down by the other states”.
For many there is a tension between acknowledging this as a momentous development when the Declaration is non-binding in the Australia legal system and unfinished business on sovereignty remains.
It has always been difficult to penetrate community suspicions of the effectiveness or relevance of international law to “grassroots”, everyday lives of Indigenous peoples. The Australian (September 17, 2007) similarly editorialised that “Indigenous rights in the abstract does nothing to help all those individuals who live in poor health and poverty, who suffer from the ravages of their own drink and drug use, or those of the people around them”.
The importance of the adoption lies in the fact that until now much of the content of emerging norms on Indigenous rights have been contested and controversial. The Declaration is now solid evidence of evolving standards pertaining to Indigenous peoples in international law. The adoption of the Declaration by the General Assembly is confirmation of the crystallising of these rights into a widely accepted normative framework.
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