The 13th of September 2007 was an important day in the history of Australian diplomacy although few people have heard of it. That was the occasion when veteran Aboriginal activist Les Malezer addressed the U.N’s General Assembly as the Chair of the Global Indigenous Caucus and introduced the Declaration of the Rights of Indigenous People.
It was, he declared, a momentous and historic occasion for both the Indigenous Peoples and the United Nations. ‘It was a tool for peace and justice, based on mutual recognition and mutual respect.’ The Declaration passed with the support of 143 nations. Eleven nations abstained while Australia, New Zealand, Canada and the United States voted against it, a decision reversed by the incoming Rudd government in April 2009.
The Declaration was the culmination of 20 years of negotiation between the world’s indigenous people and representatives of the nation states. It drew on the numerous rights recognised in assorted international documents dating back fifty years to 1957 when the ILO passed its Convention 107: Indigenous and Tribal Populations. Australia has now been a signatory of the Declaration for 24 years but not many people have heard about it or know anything about its provisions. The Human Rights Commission recognised that it ‘establishes a universal framework of minimum standards for the survival, dignity and well- being of the Indigenous peoples of the world’. In July 2022 the Law Council of Australia observed that the Declaration was ‘the authoritative international standard informing the way governments across the globe should engage with and protect the rights of indigenous peoples.’ But despite announcing support for the Declaration ‘way back in 2009’ Australian governments and parliaments were ‘yet to recognise and implement its standards in a formal and comprehensive way.’
So what are the rights now recognised by both Australia and a large majority of the world’s nation states and their people? One likely to be most contentious in Australia at the moment is that ‘indigenous people have distinctive, collective rights which are indispensable for their existence, well- being and integral development as peoples.’ The argument widely advanced in the current debate is that the Voice provides First Nations with rights that unfairly discriminate against everyone else. Despite its ostensible appeal it is an assertion bypassed by global opinion and international law more than 50 years ago and most notably in Australia by the High Court in 1992 in the Mabo judgement.
What other rights are enshrined in the Declaration? Article 3 declares that indigenous people have the right to self-determination and by virtue of it they ‘freely determine their political status and freely pursue their economic, social and cultural development’. Article 4 refers to the right to autonomy or self-government in matters relating to their internal and local affairs. Article 7 defines the collective right to live in freedom, peace and security as distinct peoples. Article 37 refers to the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States and to have them honoured and respected.
Foreign Minister Penny Wong has emphasised the importance of our indigenous heritage in the ways we present ourselves to the world and has appointed DFAT’s initial First Nation’s ambassador and a departmental discussion paper released in February this year explained that:
“We have a vision for a world…where the rights and traditions of indigenous people are respected……and where indigenous people are participants and beneficiaries of the international system…we will call for international processes and institutions to factor in the interests of indigenous people into decision making.”
At the centre of DFAT’s mission is promotion of the principals and rights embodied in the Declaration. Beyond that the Department hopes to ‘harness the soft power assets of indigenous Australians in ways that add to our international influence..’
Clearly failure of the referendum will be an acute embarrassment for Australia. But even if it passes the hard facts are that a great many Australians will have come out against what are very modest reforms and Australia is now already a generation behind many comparable countries. The only significant reform in the last forty years came as a result of the High Court’s recognition of native title in the Mabo judgement in 1992. Our politicians have not produced anything of equal significance since the passage of the Northern Territory Land Rights Act in 1976. While Australia has stood still other countries with indigenous minorities have introduced reforms which are not being considered here. There are the designated seats in parliament like the seven in New Zealand, the two seats each in the Danish parliament for Greenlanders and Faroe Islanders. There is the very powerful ‘truth telling’ body the Waitangi Tribunal in New Zealand. Canada has been proceeding with a process of modern treaty making since 1975 and have so far signed 23 of them with Indian and Inuit communities. Even more dramatic was the creation of the new self-governing Inuit province of Nunuvit in 2005. Norway, Sweden and Finland have each established parliaments for their Saami minorities which the Nordic Institute has recently explained provides the indigenous people ‘with a voice in decisions affecting their communities.’
Penny Wong’s intention of encouraging her newly appointed First Nation’s ambassador to promote, overseas, the provisions of the Declaration is a commendable venture. However it might have been more productive to carry out the same mission in Australia itself where very few people have any idea that the Declaration exists and how its provisions relate to indigenous rights here at home. The debate about the Voice proceeds without any discussion of global opinion or international law. And yet defeat will have a major impact on Australia’s international reputation according to the former Foreign Minister Julie Bishop. She explained that a no vote would convey ‘a very negative message about the openness, and the empathy, and the respect and responsibility that the Australian people have for Aboriginal and Torres Strait Islanders.’
So will a defeat bring progress to an end? Will it be like the failure of the republican cause in 1999? Much will depend on the response of the federal government. The states may well proceed independently with treaty negotiations. But there are creative responses which could be pursued in Canberra. As we have seen above the Australian Law Council urged the government to treat the Convention more seriously and implement its standards in a formal and comprehensive way ‘either in a Federal Human Rights Act or in standalone legislation.’ Another option would be for Australia to ratify ILO Convention no 169: Indigenous and Tribal: People 1989, a step advocated by Les Malezer and which is generally recommended by the U.N General Assembly every year. It was specifically mentioned in the so-called Outcome Document which was produced by the World Conference on Indigenous Peoples in 2015. Malezer explained that Aboriginal and Torres Strait Islander would gain ‘much greater recognition and achieve more tangible benefits if Australia were to sign this convention and legislate it into law.’
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