Federal government to endorse UN DRIP
Today, the Federal government announced it would endorse the United Nations Declaration on the Rights of Indigenous Peoples next Friday. The endorsement is a significant decision and a step forward for Australia because together with its commitment to closing the gap and the Apology it reveals Indigenous issues as a very clear priority of the government.
The Declaration is a framework that states can adopt in their relationship with Indigenous peoples and may guide them in the development of domestic law and policy. It is accepted that it will be used daily in relation to our dealings with government departments at all levels.
Importantly it also signals the gradual re-commitment of the Australian state to international human rights law and multilateralism which is also important to Aboriginal and Torres Strait Islander communities, particularly given Australia has indicated it will bring the NTER into line with Australia’s obligations under the Convention on the Elimination of Racial Discrimination (CERD) and the Racial Discrimination Act.
The UNDRIP was passed on 13 September 2007 by the General Assembly. The Declaration was a major objective of the United Nations International Decade of the World’s Indigenous Peoples (1995-2004).
It took over twenty years to adopt the UNDRIP and many Aboriginal and Torres Strait Islander people were involved in the drafting of the text especially former ATSIC leaders, HREOC Aboriginal and Torres Strait Islander Social Justice Commissioners, Les Malezer, Frank Guiverra, Neva Collings and non-Indigenous barristers such as Dr Sarah Pritchard.
The genesis of the UNDRIP was the United Nations Working Group on Indigenous Peoples which developed the idea for an international instrument that recognised the distinct cultural rights of Indigenous peoples and international standards that provided a framework for redressing the injustices of dispossession within the state system.
Any Declaration of the United Nations General Assembly is non-binding or what is known as “soft” international law. The text creates no new rights in international law nor does it create any binding legal obligations in domestic legal systems. However it has symbolic significance, strong moral value and is often referred to as “aspirational” - which means that states must work towards the realisation of the UNDRIP together with Indigenous peoples. The spirit of the Declaration is about self-determination and participatory rights - having a say in the decisions that affect yourself and your community.
The suggestion that the Declaration goes above and beyond Australian domestic law is untrue. Nor does it elevate Aboriginal customary law above domestic law. Indigenous peoples agreed in the drafting groups prior to the adoption that the Declaration should be explicitly subject to democracy, the rule of law, principle of state sovereignty and territorial integrity. Article 46 reads:
1. Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.
2. In the exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be respected. The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law, and in accordance with international human rights obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic
society.
3. The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.
Megan Davis is a Murri lawyer who specialises in Indigenous constitutional issues and international human rights law. Megan is Director, Indigenous Law Centre and Senior Lecturer, Faculty of Law, University of New South Wales. Megan supports the North Queensland Cowboys.
