Australia is not an island

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 discourse 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 inimical to advancing the situation and fundamental freedoms of Indigenous peoples has taken hold surreptitiously when in fact the emergency response in the Northern Territory 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:

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 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, and 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.