By Thalia Anthony, University of Sydney
Australia's endorsement of the United Nations Declaration on the Rights of Indigenous People, announced recently, comes in the midst of a number of United Nations Committee criticisms on Australia's record on Indigenous rights.
These criticisms point to Australia's failure to uphold Indigenous people's human rights and rights to equality and non-discrimination. The criticism has been directed primarily towards the Government's policy on the Northern Territory intervention. Despite such criticism, the Government has maintained its stance on the intervention. Is the endorsement of the Declaration, then, simply another act of symbolism or will it pave the way for change?
In March 2009, the United Nations Committee for the Elimination of Racial Discrimination (CERD) expressed serious concern that the Australian Government suspended the Racial Discrimination Act 1975 (Cth) to enact the Northern Territory Emergency Response (intervention) laws. In responding to the urgent complaint against the intervention brought by Indigenous leaders, the committee urged the Australian Government to report on the progress it has made to reinstate the Racial Discrimination Act and build a new relationship with Aboriginal Australia.
Last week, the United Nations Human Rights Committee reported that Australia had breached a number of its obligations under the International Covenant on Civil and Political Rights. It drew attention to the failure to establish a national Indigenous representative body, the insufficient consultation with Indigenous people in decisions affecting their rights, failure to grant reparations to the Stolen Generations and the discriminatory nature of the Northern Territory intervention. On the intervention measures, the committee stated that they were "inconsistent with the State party's obligations under the Covenant". The Committee was "particularly concerned at the negative impact" of the "measures on the enjoyment of the rights of Indigenous peoples and at the fact that they suspend the operation of the Racial Discrimination Act 1975 and were adopted without adequate consultation with the Indigenous peoples".
The Northern Territory intervention and Australia's stance on Indigenous rights will again be tested by a United Nations Committee next month, when a report will be handed down by the Committee on Economic, Social and Cultural Rights on Australia's performance under the International Covenant on Economic, Social and Cultural Rights. A number of legal centres and human rights law centres have already expressed to the committee in its submissions that the intervention violates this Covenant by virtue of its discriminatory nature. These centres claim that the intervention undermines rights to social security (particularly through its mandatory income quarantining for Indigenous people), rights to self-determination and cultural rights (especially through its provisions for compulsory acquisition of Indigenous land) and rights to Indigenous participation in decision-making (as a result of the lack of consultation on the intervention).
In light of its Indigenous scorecard on the international arena, Australia has a lot of answering to and a long way to catch up to meeting its treaty obligations. Nonetheless, Australia endorsed the United Nations Declaration on the Rights of Indigenous Peoples, which "recognises the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world". The Social Justice Commissioner, Tom Calma, described the endorsement as a 'watershed moment' in Australia's relationship with Indigenous people. Australia supported the Declaration after being one of the four states (under the Howard government) that voted against its adoption. The other three states - New Zealand, Canada and the United States - have maintained their position.
Support for this non-legally binding Declaration may be seen as simply another act of symbolism. It may be analogised with the national apology to the Stolen Generations, which did nothing further to address the suffering of those victims. For example, the Australian Government continues to oppose consecutive bills for Stolen Generations' reparations before the federal Senate.
Perhaps preempting the empty symbolism of the gesture, the United Nations Special Rapporteur James Anaya commented after Australia's endorsement: "The main challenge for Member States is to ensure that the Declaration is implemented at national and regional levels, in consultation and cooperation with Indigenous peoples, including through the adoption of appropriate policies and legislation".
If Australia is to incorporate the articles of the United Nations Declaration into Australian law, it requires initially addressing the recent concerns of United Nations committees. Of immediate priority are the concerns relating to the discriminatory nature of the Northern Territory intervention. The intervention is a direct violation of the self-determination and equality provisions of the Declaration. This is evidenced by the ongoing suspension of the Racial Discrimination Act to enforce the intervention. In the longer term, the Australian Government will need to reinstate a peak Indigenous representative body to provide input into Indigenous policy. The Declaration provides the opportunity to pave a new path towards a rights-based Indigenous policy.
Thalia Anthony is a lecturer in Law at the University of Sydney.