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Australia is not an island
Issue 138 - 20 Sep 2007
Issue 138, September 20, 2007: MEGAN DAVIS* explores the relevance to black Australia of the Declaration on the Rights of Indigenous Peoples.
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is an unequivocal and emphatic rejection by the international community of the Coalition's old-fashioned and outdated, assimilationist thinking on Indigenous rights.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 UN 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 while there remains unfinished business on matters of sovereignty, and while the Declaration is non-binding in the Australia legal system.
It has always been difficult to penetrate community suspicions of the effectiveness or relevance of international law to the 'grassroots' everyday lives of Indigenous peoples.
The Australian 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" (September 17, 2007).
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.
The rights contained in the Declaration will be useful and relevant to Indigenous Australians because it was originally drafted by Indigenous peoples in the UN Working Group on Indigenous Populations, and this included many Aboriginal and Torres Strait Islander representatives.
Every article in the Declaration responds to known existing and historical human rights abuses of states.
When the Declaration was in draft form, it was already referred to and used extensively by public institutions, and many Aboriginal and Torres Strait Islander organisations.
In fact it was so widely cited by Indigenous organisations, public and educational institutions, courts and states worldwide that some international lawyers argued aspects of the draft text were already part of international law.
The Declaration represents a building block toward binding law and the next step for any Declaration in the UN system is attaining the status of a Convention.
This would mean that any signatory would be legally bound by the text.
The reality is that if successive governments had greater respect for the recognition and implementation of "abstract" international human rights, the welfare of Indigenous Australians would be greatly advanced and improved.
Insinuated in recent public discussion on Indigenous rights is the idea that past Indigenous advocacy for a "rights agenda" is somehow equivalent to those rights having been recognised.
Yet advocacy and realisation of rights are two very different things.
The argument that the "rights agenda" - and therefore "human rights" - are counter-productive to advancing the situation and fundamental freedoms of Indigenous peoples has taken hold surreptitiously, when in fact the emergency response in the NT, for example, is a result of decades of neglect and government violation of the most fundamental rights of Indigenous Australians.
The rights contained in the Declaration confirm in international law what many critics of the NT intervention have been saying; that Indigenous peoples do have a right to be consulted on the decisions that affect their lives.
The Declaration emphasises consultation as the guiding principle between states and Indigenous peoples.
This right was embedded in the first recommendation of the Anderson-Wild report (Little Children Are Sacred):
"That Aboriginal child sexual abuse in the Northern Territory be designated as an issue of urgent national significance by both the Australian and Northern Territory Governments, and both governments immediately establish a collaborative partnership with a Memorandum of Understanding to specifically address the protection of Aboriginal children from sexual abuse. It is critical that both governments commit to genuine consultation with Aboriginal people in designing initiatives for Aboriginal communities."
A human rights based approach in the Northern Territory would have emphasised the salutary influence of consultation with Aboriginal people on the initial plan for an emergency intervention, drafting the legislation and its eventual implementation.
The Declaration emphasises that, namely that fostering a sense of ownership over solutions will result in real and beneficial outcomes for Aboriginal communities.
Evidence-based research shows that Indigenous peoples must be included in formulating solutions to difficult problems and few policies and laws are effective if Aboriginal people are not consulted.
It is not surprising then that the Government did not support the Declaration.
Until 1996, federal Labor governments supported the Declaration.
After Labor's defeat, Australia withdrew its support.
The Labor Opposition has now declared it will support the Declaration when it is elected.
Similarly Canada had always supported the Declaration and withdrew its support on the election of Stephen Harper.
The vote against the Declaration in the General Assembly by the CANZUS alliance (Canada, Australia, New Zealand, United States) was not about the integrity of the text, it was about politics and ideological fashions.
Having said that, Australia is the only state in the CANZUS alliance who has no Treaty or agreements with Indigenous peoples, no Indigenous political representation, no entrenched right of non-discrimination.
The need for this aspirational Declaration is augmented by the Coalition and Labor's starkly different approaches to Indigenous rights: One party establishes a land rights regime, the other winds it back; one establishes ATSIC, the other abolishes it; one establishes a native title claims process, the other claws it back.
This highlights the insecurity of Indigenous peoples' status in Australia, a liberal democracy dominated by party politics, without any entrenched human rights protection or guarantee of non-discrimination.
Australia's rights wasteland and unfinished business between the state and its Indigenous peoples simply means that Indigenous policy will always be inextricably linked to the goodwill of the governing political party of the day.
No-one can say that the Declaration is a panacea to the problems we face in Australia. But this development should not be diminished because of populist prejudices about the ineffectiveness or irrelevancy of international law or the UN.
History clearly shows that changed attitudes in Australia on race discrimination and the legislated Race Discrimination Act; inherent rights such as land rights; and the High Court decision in Mabo were all overwhelmingly influenced by developments in international law.
It is true the system is imperfect and has limitations, but we must never forget that the genesis of the modern international system lies in international consensus that states can not always be trusted to do the right thing by its citizens;
If anyone understands that, Indigenous Australians do and it is for this reason that the Declaration on the Rights of Indigenous peoples is a welcome development.
* Megan Davis is Director of the Indigenous Law Centre and Senior Lecturer, Faculty of Law, University of New South Wales. Megan is a member of the International Law Association's Indigenous Rights Committee, a former United Nations Indigenous Fellow and attended the United Nations Declaration working groups from 1999 to 2004.
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