The United Nations Declaration on the Rights of Indigenous People

23/09/2007

Dr Helen Szoke

Chief Conciliator/Chief Executive Officer

Victorian Equal Opportunity and Human Rights Commission

Australia’s reluctance to sign the United Nations Declaration on the Rights of Indigenous People makes a mockery of our supposed renewed commitment to addressing the welfare of Indigenous Australians.

For those who missed it – and it would be easy to miss given the scant attention - on 13 September, the United Nations General Assembly adopted the Declaration on the Rights of Indigenous People. The Declaration reaffirms that indigenous people are entitled to all human rights recognised in international law without discrimination.

Astonishingly, Australia opposed the Declaration. How could this be so at a time when we have become so acutely aware of the health, welfare and social issues that plague our Indigenous communities?

In Australia, Indigenous children are more likely to be taken into state care than other children. They are more likely to become homeless; they are more likely to end up in jail.

Yet our Government has refused to sign a Declaration that explicitly provides for the protection of Indigenous women and children against violence.

The health of Indigenous Australians is far worse than for any other groups of people. Indigenous adults in Victoria have a life expectancy up to 20 years lower than the State average.

Yet our Government has refused to sign a Declaration that sets out the rights of Indigenous people to health, education, culture and identity.

Indigenous communities in the Northern Territory have called out to the Federal Government to work constructively with them to address issues facing Indigenous communities.

Yet our Government has refused to sign a Declaration that calls on governments to work with indigenous communities in a spirit of coexistence, mutual benefit and full respect.

Australia has nothing to lose in signing the Declaration and much to gain in agreeing to adhere to human rights principles in its treatment of Indigenous people. In not signing, we have sent a strong message to the rest of the world that Indigenous people are not deserving of the freedom and equality that many of us take for granted.

Contrary to popular belief, the Declaration does not create new rights. It elaborates upon existing international human rights as they relate to Indigenous people; international standards that Australia should already be adhering to. The Declaration, while non-binding, provides a powerful instrument by which to measure our treatment of Indigenous Australians.

It affirms that Indigenous people contribute to the diversity and richness of civilisations and cultures and encourages co-operative relations between states and Indigenous peoples.

Thankfully, Australia's refusal to support the Declaration does not preclude it having relevance domestically. In Victoria the Charter of Human Rights and Responsibilities provides a mandate to consider international law, such as the Declaration, when interpreting the practical meaning and application of the rights contained in the Charter. This means the Declaration will prove an invaluable resource in understanding how the rights of Indigenous people can be best served under the Charter.

Addressing Indigenous disadvantage is not an easy task, nor will it benefit from a “quick fix”. The Victorian Charter of Human Rights and Responsibilities aims to improve the work of State and Local government by compelling decision makers, be they law makers, bureaucrats, the courts or public authorities, to consider the human rights dimension of all matters before them and act in a way that is compatible with human rights.

The Charter makes explicit reference to Aboriginal culture in two parts – as part of the preamble, which recognises that human rights have special importance for Aboriginal people of Victoria, and again in the context of the right to culture, which emphasises that Aboriginal people hold distinct cultural rights. Given the ongoing levels of discrimination experienced by Indigenous Victorians, the equality provisions of the Charter are also extremely important.

This means that under the Charter public authorities will be obliged to acknowledge, respect and support Aboriginal culture and to avoid any form of racial discrimination.

Indigenous advocates were disappointed that the Charter did not contain the right to self-determination. At the time of drafting, self-determination was an unclear area of international human rights law. This right has now been recognised in the UN Declaration.

The inclusion of rights relating to self-determination is of great concern to the Australian Government and has been the sticking point in its failure to support this Declaration. The Prime Minister has stressed that it is wrong to support something that argues the case of separate development for one group within a country. This is reasonable, but the Prime Minister has missed the point.

Self-determination does not mean that there is a different set of laws and rules for Indigenous people. It is a provision within existing law by which Indigenous people can freely determine their political status and freely pursue their economic, social and cultural development. This includes rights of Indigenous people to maintain and strengthen their own institutions, cultures and traditions, to pursue their development and to have the autonomy to decide how to address issues facing Indigenous communities.

As recent public responses to successful native title claims have demonstrated, the notion of Indigenous self-determination can be used to whip up near hysterical concerns and fears in the general community. If this country is genuine in its commitment to addressing Indigenous disadvantage, there is a need to revisit the concept of self-determination, and demonstrate that the recognition of such rights does not destroy the right of the government to govern, nor does it intrinsically split the community into two.

As it stands, the Victorian Charter includes only civil and political rights. The inclusion of self-determination and economic and social rights will be considered when the Charter is reviewed after four years. Reaffirming these rights is now more urgent than ever, given the Australian Government’s failure to do so.