Words in action | UNDRIP: Australia’s path to Indigenous rights and democracy

A document that many of us have never heard about let alone read.

And yet, it is considered to be the most comprehensive international instrument for the rights of Indigenous peoples.

Not just in the context of Australia but internationally.

Adopted by the General Assembly of the United Nations on September 13, 2007, the declaration’s underlying principles of self-determination, participation in decision-making, respect for and protection of culture, and the rights and roles of Indigenous peoples within society provide a powerful framework: what Article 43 states is, “the minimum standards for the survival, dignity and wellbeing of the Indigenous Peoples of the world”.

UNDRIP addresses both individual and collective rights, cultural rights and identity, and rights to education, health, employment and language. It outlaws discrimination against Indigenous peoples and promotes their full and effective participation in all matters that concern them. It also ensures their right to remain distinct and to pursue their own priorities in economic, social and cultural development.

Les Malezer — a Gubbi Gubbi and Butchulla man from north Queensland — was the chair of the Global Indigenous Caucus when the declaration was adopted by the UN General Assembly.

In this capacity, he addressed the General Assembly on behalf of the Indigenous peoples of the world.

“Today’s adoption of the declaration occurs because the United Nations and the Indigenous peoples have found the common will to achieve this outcome. The declaration does not represent solely the viewpoint of the United Nations, nor does it represent solely the viewpoint of the Indigenous peoples. It is a declaration that combines our views and interests and which sets the framework for the future. It is a tool for peace and justice, based upon mutual recognition and mutual respect.”

Australia was one of four countries, including Canada, New Zealand and the United States, that voted against the declaration. This position was reversed by the Australian Government on April 3, 2009, when formal support was given to UNDRIP.

However, UNDRIP is not legally binding without government intervention.

As Professor Mick Dodson explained in the foreword to Amnesty International Australia’s publication of the United Nations Declaration on the Rights of Indigenous Peoples:

“The existence of human rights standards is not the source of Indigenous disadvantage. Human rights do not dispossess Indigenous peoples, they do not marginalise them, they do not cause their poverty, and they do not cause gaps in life expectancy and life outcomes. It is the denial of rights that is a large contributor to these things. The value of human rights is not in their existence; it is in their implementation. That is the challenge for the world and for Australia with this declaration.”

In August 2009, the United Nations Special Rapporteur on the Rights of Indigenous Peoples, Professor James Anaya, visited Australia to report on the ‘Situation of Human Rights and Fundamental Freedoms of Indigenous People’. In his report, he noted that despite some recent advances, Australia’s legal and policy landscape must be reformed. He recommended:

• The Government undertake a comprehensive review of all its legislation, policies and programs that affect Aboriginal and Torres Strait Islanders in light of the declaration; and

• The government should pursue constitutional or other effective legal recognition and protection of the rights of Aboriginal and Torres Strait Islander peoples in a manner that would provide long-term security for these rights.

Since then, there has been little effective action in Australia on implementing UNDRIP.

The visit in 2017 by the UN Special Rapporteur and the resultant scathing report underlined the responsibility of the Federal Government to ensure compliance with international human rights obligations.

In 2021, the Australian Human Rights Commission noted that the Australian Government has:

• Not taken steps to implement the UNDRIP into law, policy and practice;

• Not negotiated with Indigenous Peoples a National Action Plan to implement the UNDRIP; and

• Not audited existing laws, policies and practices for compliance with the UNDRIP.

As a result, the Human Rights Commission recommended that the “government develop a national program to implement UNDRIP and schedule it to the definition of human rights in the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth)”.

On November 23, 2023, the federal parliament’s Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs released its report An Inquiry into the Application of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Australia.

“At the heart of this report is a call for all Australian governments and civil society to engage with the rights of First Peoples through UNDRIP,” committee chair Senator Patrick Dodson said.

“The committee heard clear evidence about how the enhanced application of UNDRIP offers a blueprint for a renewed relationship between Aboriginal and Torres Strait Islander peoples and the Australian nation that strengthens our democracy and improves the wellbeing of First Peoples.”

The Joint Standing Committee made six recommendations.

1. The committee recommends that the Commonwealth Government ensure its approach to developing legislation and policy on matters relating to Aboriginal and Torres Strait Islander people (including, but not limited to, Closing the Gap initiatives) be consistent with the articles outlined in the United Nations Declaration on the Rights of Indigenous Peoples.

2. The committee recommends the development of a National Action Plan, in consultation with Aboriginal and Torres Strait Islander peoples, that outlines the approach to implementing the United Nations Declaration on the Rights of Indigenous Peoples in Australia.

3. The committee recommends that any National Action Plan should consider the legislative, policy and other approaches to implement, and assess compliance with, the United Nations Declaration on the Rights of Indigenous Peoples across all jurisdictions and should seek to include co-ordination agreements with all levels of government to maximise success.

4. The committee recommends that the Commonwealth Government establish an independent process of truth-telling and agreement-making, as requested by Aboriginal and Torres Strait Islander peoples, as a mechanism to support healing and assist implementation of the United Nations Declaration on the Rights of Indigenous Peoples (particularly Articles 3, 8, 11, 28, 32, and 37).

5. The committee recommends that the Commonwealth Government work with state and territory governments and non-government education institutions to develop and adopt content for all levels of education, including for new citizens, in order to enhance awareness of:

• Australia’s human rights framework, including the relationship between the United Nations Declaration on the Rights of Indigenous Peoples and human rights covenants;

• Australian history with respect to the relevance of the legal fiction of ‘terra nullius’ in facilitating the colonisation and settlement of Australia, and its impact on Aboriginal and Torres Strait Islander peoples; and

• General civics awareness, including the functions and operations of Australian political and legal institutions.

6. The committee recommends that the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) be amended to include the United Nations Declaration on the Rights of Indigenous Peoples in the definition of ‘human rights’ so that it be formally considered by the Parliamentary Joint Committee on Human Rights when scrutinising legislation.

It is to be hoped that, after all this time, Australia finally matches words with actions and takes meaningful steps to ensure the principles of UNDRIP are incorporated into legislation, policies and practices.

UNDRIP — such an unlikely word, but with such powerful underpinnings.

Now, 15 years since Australia endorsed the declaration, it is high time for our government to take real action on UNDRIP and, by doing so, strengthen our democracy and our nation.

Read the United Nations Declaration for the Rights of Indigenous Peoples. As a colonial country, we have a responsibility to understand why it is so important.

Go to https://humanrights.gov.au/our-work/un-declaration-rights-indigenous-peoples-1