John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

I inform the Senate that the President has received the following letter, dated 10 September 2007, from Senator Bartlett:

Dear Mr President,

Pursuant to standing order 75, I give notice that today I propose to move:

That, in the opinion of the Senate, the following is a matter of urgency:

The need for the Australian government to support the adoption of the proposed United Nations Declaration on the Rights of Indigenous Peoples when it is put to the vote in the current session of the UN General Assembly.

Is the proposal supported?

More than the number of senators required by the standing orders having risen in their places—

I understand that informal arrangements have been made to allocate specific times to each of the speakers in today’s debate. With the concurrence of the Senate, I shall ask the clerks to set the clock accordingly.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I move:

That, in the opinion of the Senate, the following is a matter of urgency:The need for the Australian Government to support the adoption of the proposed United Nations Declaration on the Rights of Indigenous Peoples when it is put to the vote in the current session of the United Nations General Assembly.

The Democrats have brought on this matter of urgency today because we believe it is an urgent matter. The United Nations General Assembly is sitting at present and it will be considering the issue of the adoption of a declaration on the rights of indigenous peoples within the next week. It is doubly appropriate because of course we have the Prime Minister of Canada in Australia at the moment. He will be addressing an unofficial session of the Australian parliament tomorrow. Canada and Australia are two governments that have been less than supportive—in fact, they have been amongst the least supportive publicly—of adopting the United Nations Declaration on the Rights of Indigenous Peoples.

It needs to be stated up-front that this declaration on the rights of indigenous peoples would not be binding. It is nonetheless an internationally agreed mechanism for recognising the rights of indigenous peoples and it sets benchmarks which all countries should seek to meet in ensuring that their indigenous peoples’ rights are acknowledged, respected, enforced and implemented.

The Howard government has of course on a number of occasions been quite hostile to the United Nations and to various international treaties and conventions. It has sought to belittle them a number of times. But it is particularly relevant, I think, to note that in recent times there have been fervent references to international conventions and laws by the Howard government to justify and reinforce their actions—including, the intervention in the Northern Territory with regard to Aboriginal people. The Convention on the Rights of the Child in particular was referred to regularly by government speakers and by the minister as part of the reason why the government had to act—to ensure that the rights under the Convention on the Rights of the Child were properly respected and implemented. Certainly that is a convention that the Democrats support, and indeed we would like to see it actually reflected properly in Australian law.

We have even seen the government make fervent pleas referring to the United Nations International Covenant on Civil and Political Rights to justify and reinforce its legislation and action to enable plebiscites on the amalgamations of local government in Queensland. So we are seeing in recent times what I think is a welcome number of statements by coalition government ministers referring to international conventions and international law which Australia has adopted as valuable benchmarks to justify actions here in Australia.

It is, I believe, a key moment for Australia and, indeed, for the global community to be adopting internationally agreed declarations setting out basic fundamental rights for indigenous peoples around the world and particularly ours in Australia. It is not engaging in self-flagellation or hairshirt politics or black armband politics, or any other pejorative phrases, to make the simple clear statement that Australia as a nation has failed its Indigenous peoples terribly over centuries. This has been done often unintentionally, often inadvertently, often unknowingly, but it is still a fact that we have done it. That is our legacy, that is our record, across the political spectrum, across all levels of government, across the decades. This covenant provides an opportunity for the Australian government to say, in conjunction with the global community, ‘We recognise these as fundamental rights for indigenous peoples and we will seek to commit to them.’

One of the areas that is often pointed to, and has in the past been pointed to by people speaking on behalf of the Australian government, as a problem in the declaration is the right of self-determination. So it is worth emphasising that, according to the very latest version that I understand is to be put to the United Nations General Assembly, article 46, part 1, specifically says:

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 ...

So any suggestion that self-determination and the right to self-determination somehow threaten the territorial integrity of Australia or the political unity of Australia is a furphy. This declaration also has a recognition in article 3:

Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

That is simply a repeat of part 1 of article 1 of the United Nations International Covenant on Civil and Political Rights, which Australia has long ratified, stating that all peoples, including of course indigenous peoples, have the right of self-determination.

It is important in the current debate—not debating the specifics of the policies whether in the Northern Territory or anywhere else—to take note of some of the overarching attitudes that have been expressed and the directions and comments that have been made by government leaders. These are attitudes that have been interpreted by many indigenous communities as supporting assimilation as the only way forward, as supporting paternalism as an adequate attitude. There have been government members in this Senate who have said that. I believe that it is clearly counter to the human rights of anybody to have governments adopting paternalism and assimilation, but this applies particularly to the rights of indigenous peoples. A crucial part of these declarations is recognising that indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, whilst retaining their rights to participate fully in the political, economic, social and cultural life of the state, of the nation, they are a part of. It is possible to do that. It is not only possible but desirable, not just for indigenous peoples but for the future of our state. The Democrats believe that adopting this declaration is a matter of urgency. We urge the Australian government to vote in support of it in the UN General Assembly within the next week, and we also urge the Canadian Prime Minister, who is a guest in our country at the moment, to consider doing the same on behalf of his nation. (Time expired.)

Marise Payne (NSW, Liberal Party) Share this | Link to this | Hansard source

I rise to participate in this debate this afternoon on the United Nations Draft Declaration on the Rights of Indigenous Peoples. I start where Senator Bartlett ended, with the observation that, in the view of the Australian Democrats at least, this is a matter of some urgency. I do not think there is substantial demur about the importance of the declaration itself. In fact, its lengthy and considered development would indicate that, but I really do not think that the importance of considering it in a rushed manner when there are still matters to be resolved, certainly as far as our government and a number of other governments are concerned, is outweighed by the urgency that Senator Bartlett has in his view identified. It was interesting that in his early remarks he indicated that Australia—Canada can speak for itself—is one of the least supportive governments publicly. I find that somewhat ironic given that, in the development of the declaration itself, which has been in play now for over a decade, Australia has been intimately and constructively involved in that process. In many ways, the amount of time that has been spent and the engagement of senior officials which has been undertaken are an acknowledgement and an indication of the fact that we do regard this as an important piece of work by the United Nations.

Senator Bartlett made a number of specific references, including one to the right of self-determination, which I will come to in a moment. We support a meaningful declaration which will hopefully be achieved by a consensus of the states setting what would be regarded as a new standard of achievement with the potential to make some real difference in the circumstances of indigenous peoples across the world. We believe that indigenous peoples deserve and need a declaration which can be implemented meaningfully, not one which is rushed for the sake of signing on a particular dotted line.

As I said before, we have been involved in this process for over 10 years. We approached the consultations that were held in New York recently in a constructive, engaged and flexible manner. We put on record in New York the fact that our concerns could be met through very limited changes to the Chair’s text. We made a concerted effort to reduce our key concerns to the minimum number of possible changes so that we were not seeking a complete rewrite of the entire declaration, which would obviously be an extraordinary process. We are not trying to have the entire text renegotiated.

As I understand it, when a moderator, His Excellency Hilario Davide of the Philippines, was appointed to convene the recent consultations on the Declaration in New York, he recommended to the President of the UN General Assembly that a limited portion of the text that was adopted by the vote in the Human Rights Council in June last year be reopened. We thought that was a sound recommendation. We thought it would have honoured the spirit of the GA resolution of November 2006 which in fact deferred consideration of the declaration pending further consultations. We welcomed the GA decision to defer adoption of the declaration text to allow for further consultations.

I note Senator Bartlett’s observations about Australia’s attitude and approach to the UN, but we have always said that it is our strong preference that human rights instruments in particular be adopted by consensus to ensure the broadest possible support. This text was lacking in consensus. It was hastily put to the Human Rights Council for adoption and it was done without full and final consultations. In fact, as I understand it from the statement issued by Australia, New Zealand and the United States during the Human Rights Council in June 2006 by Her Excellency Caroline Millar, our ambassador and permanent representative to the UN in Geneva, the text was issued over the internet with no opportunity for states to discuss it collectively, which does not seem to me like the most constructive process in the world.

We have a number of procedural concerns. We are concerned, as I said, that we have not been given the opportunity as states to discuss the text collectively because it was prepared and submitted by the chair of the working group after negotiations had concluded. There was plenary discussion about the declaration in June this year. There has still been no actual collective read-through of the final text and, as Senator Bartlett indicated, it is due to be considered on 13 September in the 61st Session of the GA. We will base the final decision on our voting position on the exact terms of any text which is put to the vote. I note that Senator Bartlett raises some issues about the current drafting of article 46. We really cannot support a text that does not address our key concerns, which have been put on the record, both singly and in company with other nations, on a number of occasions in the General Assembly, the Human Rights Council and the predecessor of the Human Rights Council, the Commission on Human Rights. There has been advanced, in recent times, a so-called African-Mexican compromise text, but we are still concerned about that because we do not think it adequately addresses our key concerns, which include the need for safeguards that will protect the territorial integrity of states and also the rights of third parties.

I will identify the six key concerns we have with the text as it currently stands. Notwithstanding Senator Bartlett’s observations about the drafting of the language in article 46, we still have concerns about the references to self-determination and the potential for misconstruing those. I do not see any particularly significant problem with trying to get clarity around that so that as many people as possible support the declaration. There are other states which have the same concerns.

On the question of land and resources, we are concerned that the provisions on those areas in the text ignore the contemporary realities of many countries which have indigenous populations. They seem, to many readers, to require the recognition of indigenous rights to lands which are now lawfully owned by other citizens, both indigenous and non-indigenous, and therefore to have some quite significant potential to impact on the rights of third parties.

Intellectual property is the third point we would raise. We believe that, as our laws here currently stand, we protect our Indigenous cultural heritage, traditional knowledge and traditional cultural expression to an extent that is consistent with both Australian and international intellectual property law, and we are not prepared to go as far as the provisions in the text of the draft declaration currently do on that matter.

We also have concerns about the inclusion in the text of an unqualified right of free, prior and informed consent for indigenous peoples on matters affecting them, which implies to some readers that they may then be able to exercise a right of veto over all matters of state, which would include national laws and other administrative measures. That would obviously be of concern to any sovereign government.

Further on the question of third-party rights, in seeking to give indigenous people exclusive rights over intellectual, real and cultural property, the draft text does not acknowledge the rights of third parties—in particular, their rights to access indigenous land and heritage and cultural objects where appropriate under national law. That should not be a big stumbling block, but it is a matter which we wish to see addressed. The text in its current form fails to consider the different types of ownership and use that can be accorded to indigenous people and the rights of third parties to property in that regard.

I also want to make a note about matters of customary law. There are concerns about the way the text is currently drafted on the question of customary law and whether that may place indigenous customary law in a superior position to national law. We understand in talking about customary law that it is a law based on culture and tradition and is not one which is expected to override national laws and is certainly not one which should be used selectively by certain indigenous communities where it is possibly convenient to permit the exercise of practices which would not be acceptable across the broad.

They are the six points where we have concerns. We have tried very constructively—and I really do commend the statement by Her Excellency Caroline Millar on behalf of Australia, New Zealand and the United States in the Human Rights Council in June last year. She is intimately acquainted with this process. She has set out very, very clearly, for the council and for those who are interested, where the concerns actually are. It is a very constructive statement and one which I think others would do well to read. In that statement and on behalf of those nations she also made a number of suggestions about alternative procedures which could be taken which seem to have been ignored. (Time expired)

Ursula Stephens (NSW, Australian Labor Party, Shadow Parliamentary Secretary to the Leader of the Opposition (Social and Community Affairs)) Share this | Link to this | Hansard source

I too rise to contribute to this debate on the urgency motion this afternoon. I start at the point that we are really looking at a draft declaration which is not binding—which has, as we have heard, aspirational goals. We have heard a lot about aspirational goals in the last few days, particularly in relation to climate change: aspirational goals are now something that is very worthy and that we should all be adopting.

But, on the issue of the draft declaration and what it represents, Labor is concerned that we have come to the position where this draft declaration is going to be voted on, definitely by 17 September but probably as early as Thursday, and that after 24 years of negotiation, clear discussions, a lot of work and goodwill and a lot of extended negotiations and deliberations by a range of people, we now have the situation where Senator Payne would suggest there is no urgency around this issue, but in fact the situation for indigenous peoples around the world is getting more and more dramatically desperate by the day.

We only have to look at the situation of indigenous peoples in places like Chad and the Sudan—in Darfur—to understand how important this declaration is for the rights of indigenous peoples. It will affect those people. It is not just about the indigenous peoples of developed countries. In fact, it is much more important to the indigenous peoples of undeveloped countries and the circumstances with which they are presented.

The Australian government’s argument, presented by Her Excellency the Ambassador Rosemary Banks, the New Zealand representative speaking also on behalf of Australia and the United States, said that those countries could not accept the adoption of a text that she described as ‘confusing, unworkable, contradictory and deeply flawed’. She suggested that the declaration’s reference to self-determination:

... could be misrepresented as conferring a unilateral right of self-determination and possible secession ... thus threatening the political unity, territorial integrity and the stability of existing ... Member States.

Senator Bartlett, in his contribution to this debate, has reflected on the most current drafting of the draft declaration. The draft declaration goes to some pains to address that issue in article 45, saying:

Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations.

Labor’s position on this issue is that this is another very shameful moment for Australia. It certainly confirms to the international community what they already think about our human rights record, especially coming so closely after the adverse international media reports about the Northern Territory intervention legislation. Let me tell you: we did not get very much positive reporting about that legislation.

The Prime Minister himself actually worked quite hard to destabilise the negotiations and the important work of consensus building on the rights of indigenous peoples around the world when he persuaded the new Prime Minister of Canada to completely reverse the position of the Canadian people and the Canadian government, when he visited Canada last year. That is a very significant thing. The Prime Minister’s department admitted last year that the Prime Minister lobbied the new Prime Minister of Canada to change that country’s position on the draft declaration. There was Canada, which had played a significant role in the negotiations for more than a decade and had collaborated with indigenous peoples around the world to draft a number of the provisions that were critical in building support among other states, and then, at the 11th hour, there was an about-face, with arm-twisting by Australia’s Prime Minister, to now denounce the position that the country had previously supported.

The declaration has major global implications. It is urgently needed as a major step towards addressing the widespread human rights violations affecting indigenous peoples across the world, and it is certainly a long-overdue step towards limiting the abuse and murder of indigenous peoples around the world. As I said, it has important implications for places like the Sudan.

We know that the declaration, like other UN declarations, is not legally enforceable. It is a non-binding document that certainly has no capacity to override Australian law. As I say, it is an aspirational document. After being adopted by an overwhelming majority of the Human Rights Council last year, we know that despite the opposition by Australia, New Zealand, Russia, Canada and America it will be adopted by the United Nations this week. We will just be the people, the developed countries, that have not supported the rights of indigenous people in developing countries in the world.

The declaration itself sets international standards for how aboriginal peoples, indigenous peoples, are to be treated in countries around the world. It says aboriginal peoples or indigenous peoples should have the right to determine their political status and have the right to all freedoms granted under the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights laws.

Senator Payne raised concerns about self-determination and that reminded me of what I was reading about the development of this draft declaration and the sudden interest by Australia in the issue of self-determination, which has been part of the Australian government’s Indigenous policy since 1972. Even until 1977, Australia was silent in the whole debate about self-determination. But it was in 1998 when the Howard government decided that Australia would seek to persuade Canada, New Zealand and the United States to demand the removal of the term ‘self-determination’ from the draft Declaration on the Rights of Indigenous Peoples. At the time, the Foreign Minister is reported as saying:

In the case of Australia, we don’t want to see a separate country created for indigenous Australians. We will be arguing that it might be better to use the term self-management rather than leaving an impression that we are prepared to have a separate indigenous state.

Of course, that is alarmist rhetoric. There is no sense that this draft declaration will lead to the establishment of a separate Indigenous state.

Labor is calling on the Howard government to show some moral courage and leadership and support the adoption of the UN Draft Declaration on the Rights of Indigenous Peoples. It is going before the UN this week and, despite the government’s opposition, the UN will adopt it. Labor is very proud of the constructive role that it played in the negotiations during the Hawke-Keating government and is pretty disappointed that the Howard government not only have taken an adversarial attitude to the negotiations but also have successfully lobbied other nation states, like Canada, to reverse their position. It is very clear that their opposition to the declaration is ideological because they continue, as we have heard today, to point out worst-case scenarios rather than interpreting the provisions of the draft declaration in good faith.

There are many people who are concerned about Australia’s opposition. Amnesty International and the National Council of Churches are among dozens of groups seeking a change of heart. We have had demonstrations outside Australia’s UN mission in New York calling on the Howard government to end its opposition to the declaration. More than 25 organisations were there, most representing indigenous peoples from various parts of the world. Right now in Australia, Indigenous Australians have no constitutional acknowledgement, no settlement, no bill of rights, no representative body and no national leadership on reconciliation. Adopting this declaration would give this country a set of aspirations that we can all hold on to.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

The Greens also support this motion and note in today’s paper Amnesty International’s ad, which is addressed to the Prime Minister of Australia, John Howard, and to the Prime Minister of Canada, Stephen Harper. They ask the respective governments to support this declaration. The ad says:

This week the United Nations is set to take a long overdue step when it votes on the adoption of a new Declaration recognising the fundamental rights of Indigenous peoples. Amnesty International members throughout Australia and Canada call on you to make it clear that your governments are prepared to join the world in supporting its adoption.

In Australia, in Canada and around the world, Indigenous peoples are universally among the most marginalised and persecuted people on the planet. There is no question that concerted international attention is needed if these grave abuses are to be addressed. The Declaration on the Rights of Indigenous Peoples will be central to these efforts.

It has taken more than two decades to get this far. In June 2006, the first major hurdle was cleared when the UN Human Rights Council adopted the Declaration. However, Australia and Canada joined forces with other governments and were instrumental in blocking its adoption at the UN General Assembly earlier this year.

Today an overwhelming majority of the world’s nations have indicated they support the Declaration and are prepared to vote for its adoption. At long last there may be an international human rights instrument which delivers minimum human rights standards for Indigenous peoples. Canada and Australia should be among the global champions of this Declaration.

At this significant point in history, it is our hope and expectation that your governments will no longer stand in opposition to the Declaration. Indigenous peoples need your support, and certainly deserve no less.

We hear today that the government cannot possibly support the declaration because it is so rushed. It has been over two decades. Two decades! How long do you need to support this declaration? How long do you need to study it? It is longer than my son’s lifetime—and he is 18. He has not been in this world as long as you have been talking about this declaration.

There are seven states, I understand, who have major objections to this declaration, and I find that deeply objectionable. But when you scratch beneath the surface you probably do not have to scratch too far to realise why the Australian government does not want to support this declaration—because it does not want to expose itself perhaps to accusations of violations under this declaration. When you look at the racially discriminatory legislation which has just been adopted by this government and which takes away people’s land, their rights to control their income and their decision making, it is no wonder that the government does not want to support this declaration. It is no wonder that this government does not want to support this declaration when it is still presiding over a 17-year gap in the life expectancy of our Indigenous peoples, when it is still underfunding medical and health requirements for our Indigenous peoples in a major way and when it is still underfunding their housing requirements in a major way. Last year we saw the report from the UN Special Rapporteur on Adequate Housing, which showed the parlous state of housing in our Aboriginal communities.

Of course, the declaration calls on states to work closely with indigenous peoples, ensuring the protection of their rights pertaining to such things as self-determination, education, cultural identity and the use of lands, territories and resources essential to indigenous people’s livelihoods and ways of living. Did we see that with the legislation that just passed through this chamber? No, we certainly did not. There was no consultation with indigenous peoples around that legislation, which had to be exempted from the Racial Discrimination Act because it quite clearly contravenes it. It is no wonder that this government needs a little bit more time—maybe a quarter of a century. We have now had 24 years—maybe we need another year or two! Let us take it over the quarter-century mark to see if we can protect it.

This government has also gone about systematically undermining and removing representative organisations for Indigenous peoples, undermining their ability to make decisions, and has not addressed the issues that are so pertinently covered by this declaration. This is an important declaration, and I would have thought this government would have been proud to be one of the first to sign up. (Time expired)

Russell Trood (Queensland, Liberal Party) Share this | Link to this | Hansard source

It is a great privilege to be able to participate in this debate this afternoon. I want to express, as my colleague Senator Payne has done, some of the concerns that the government has about the declaration. In listening to the opposition and the minor parties on this matter, I have been rather curious. There has been much reference to moral courage, to good faith and to supporting the alleged body of opinion that exists within the international community in favour of this declaration. There was a reference to the fact that we would be forever condemned if we were not to support the declaration which is to come before the United Nations in perhaps a few days time.

This is quite an extraordinary argument because it seems to suggest that Australia is not permitted to have its own view on these matters, that it is not permitted to assess an instrument that is proposed to become a declaration of the United Nations and that it is not permitted to assess whether or not that particular declaration is in Australia’s interests and in the interests of Indigenous Australians. I would have thought that every member of this chamber would assert and accept the proposition that, in relation to every matter that comes before any international body, any international organisation or any non-governmental organisation, Australia has the right to reflect on whether or not the particular proposal which is before the organisation is in its interests. The Australian government has taken the view that this declaration, as it now stands, is not in the interests of Australia and not in the interests, more widely and more generally, of indigenous peoples around the world. That is the important proposition. This document will not advance the cause of indigenous people anywhere on the planet.

In many ways, the Australian government would like to support this document. It has some merit, as Senator Payne pointed out. It is a document of some 46 articles and contains some articles which I think most of us could quite strongly support, such as ‘the right to a nationality’ and ‘the rights to life, physical and mental integrity, liberty and security of person’. Article 8 contains ‘the right not to be subjected to forced assimilation or destruction of their culture’, and so it goes. The Australian government’s position is to strongly support numerous elements of this document, but the view it takes of the document overall is that it is flawed.

The Australian government has worked constructively with other countries, over a long period of time, trying to secure a document which would have consensus within the international community. It has done that because it believes that that is the only kind of document that will be of value to indigenous people around the world. There is no point in the General Assembly approving a declaration from which a large number of significant countries are likely to dissent. We would be far better off if we could secure a document which had widespread international approval, and this document, as it currently stands, does not command that widespread international approval.

It ought to be a document which we can all look to with some pride and say, ‘This document sets a standard by which we wish governments to show concern for their indigenous people.’ This document, as it presently stands, does not reach that standard. It is an aspirational document. It is not intended to be law and, curiously, I think it was Senator Stephens who said that the fact that it was not going to be law was a reason why the concerns that we have should be set to one side. It is almost as though we should support rhetorical expressions of concern and, if they are not binding in law, add our name to a long list of countries which are apparently entirely happy with this document. The Australian government has worked constructively over a long period of time and, as Senator Payne pointed out in her contribution to the debate, we had hoped that there would be further time to assess the progress of the document.

It is flawed in various kinds of ways, and Senator Payne alluded to those shortcomings. One that she did not mention but I think deserves some recognition in the context of this debate is the fact that the document as it stands does not contain a definition of ‘indigenous peoples’. This seems to be an extraordinary omission. Here is a document proposed to be an international declaration about indigenous peoples and there is no attempt, within the document, to make any kind of effort to define what an indigenous person might actually be. The absence of a definition leaves the document open to abuse. It provides the opportunity for separatist groups and minority groups—anybody who might wish to claim indigenous status—to abuse the forthright intent of the document. I would have thought that that was something which, on further discussion, might easily be eliminated. That opportunity for exploitation could easily be removed, and we could move to something which would have, at least in that respect, a wider degree of consensus.

Senator Payne alluded to some of the other shortcomings of the document. She alluded to the problem of self-determination. She alluded to the problem in relation to intellectual property. She did not allude to the concern expressed by Australia and several other countries in relation to the repatriation of human remains. It seems that, rather than being seen as an opportunity for indigenous people to repatriate remains taken from their country of origin, the document is being interpreted and construed by some states as allowing them to maintain their holdings of indigenous remains and artefacts. There may be some countries in which that would be an acceptable course of action, but it is hardly a state of mind or position that Indigenous Australians would encourage the Australian government to take on their behalf in relation to this declaration before the United Nations.

The general position of the government on this matter is that this is a document which we would very much like to support. It is a document which we have constructively contributed to over a long time. It is a document which we believe ought to be a sign of the international community’s position. (Time expired)

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

I too wish to partake in what I find to be a frustrating and disappointing debate. In terms of where we are at, I think it is clear that rarely does a perfect document come out of any organisation—in particular, the UN. The document in front of us, which is now in front of the world community, has been evolving over a long time. Some people say there has been 20 years of discussion since the original International Decade of the World’s Indigenous Peoples was declared. Most particularly, since the mid-nineties there has been a structured approach to the UN principles to look at how there can be an international commitment to the UN Declaration on the Rights of Indigenous Peoples. This declaration is a huge commitment and offers real hope to so many people. It is long and complex and uses many verbs—in fact, the preambles of all the UN documents that I have been acquainted with are often longer than the actual articles that people are agreeing to—but, in terms of what it offers to the world, it is invaluable. In fact, when we were talking with indigenous people this year on the International Day of the World’s Indigenous People, the UN High Commissioner for Human Rights talked about the hope this document could have for indigenous people across the world. She invited states and the international community as a whole to give particular attention to targeting indigenous people in programs to reduce poverty and also to make sure that people have their voice.

This is not an easy document to consume, but what we forget is that it is an aspirational document—a declaration; it does not actually bind any country of the world to take particular action. What it does is bind countries to look within their own programs of law to respect and acknowledge the rights of indigenous people. When Senator Bartlett and Senator Evans talked to Tom Calma from HREOC in October last year, Mr Calma was asked, in his capacity as a commissioner, what the signing of this document would mean. In his evidence, Mr Calma said:

… it is a declaration. As such, it is a non-binding document … It will then be up to each of the states—

that is, the governments of countries—to take up what they can do in this process. He went on to say:

But, from an indigenous person’s perspective, it will be the benchmark that we will be looking to encourage governments to try and follow. What needs to be recognised is that the declaration is really a compilation of all the various references to indigenous peoples in other conventions and covenants, so there is not really anything new—

in this document. As an integral part of two decades of consideration of issues around indigenous people, it is a declaration about which the United Nations, as a compilation of member nations, can stand together and say, ‘We accept this declaration.’ It does not mean that every state that signs up to the declaration will have to implement all the articles. This declaration will not mean that there will be a binding rule on self-determination and the issues that we have heard Senator Payne and Senator Trood identify—and quite rightly so, because these things belong under individual country laws—but what it will do is put on the international stage an awareness of, and focus on, the role of indigenous people within those frameworks. Australia should be leading in this area—in fact, we have led in the past. That is why I say again that there is a degree of disappointment in our discussion at this time.

There has been a recommendation from the Human Rights Committee that this declaration be taken up, so already a hope has been established amongst a number of indigenous people who have attended and contributed to meetings of the Human Rights Forum. Many Indigenous Australians have gone to the UN, at various places, to talk about why such a declaration is important to them in their daily lives and about the issues of disadvantage they face on an almost daily basis. We have heard many times in this place about the horrific statistics on the suffering of Australian Indigenous people in health, in education and in life. Those same issues are being suffered—and the statistics are similar—by the various indigenous people across the world. The UN itself has put out statistics—and this is an estimate—that more than 370 million individuals, living in more than 70 countries, could be identified as indigenous people in 2007. Those numbers are confronting, but one of the most confronting things about them is that, when you go around and look at the living conditions, life expectancy and day-to-day issues faced by indigenous people in their own countries, they suffer disadvantage in so many cases. The declaration that is going before the UN assembly acknowledges indigenous disadvantage and will establish the right of people to have expectations of education, health, land ownership and a genuine life within their own community.

They are the kinds of hopes and expectations that all of us have. Now we are hoping that as a part of the second International Decade of the World’s Indigenous Peoples the UN assembly will acknowledge, through the various articles of this particular declaration, that all peoples who are indigenous to their lands will be able to work together to achieve these within their own processes.

We are celebrating in so many ways in our country this year the 40th year of the rights of Indigenous people to vote and to be citizens in our country. Earlier this year, a friend of mine, Jackie Huggins, in speaking at one of the very many celebrations around those issues, talked about the processes that were established in her family when they were fighting for reconciliation 40 years ago. She said:

To me, like my mother ... reconciliation has always encompassed three things: recognition, justice and healing.

They are the three components that are encompassed in the international Declaration on the Rights of Indigenous Peoples. We can look together and see that across the world people are saying that Indigenous peoples have the right to recognition, the right to justice and the right to healing. That is what this declaration is about. We can achieve it and we can work within our own laws to give hope to our own people and people across the world.

Mathias Cormann (WA, Liberal Party) Share this | Link to this | Hansard source

Mr Acting Deputy President, I also rise to contribute to this debate today. Let me say at the outset that I support the view that the Australian government should only support the adoption of the proposed United Nations Declaration on the Rights of Indigenous Peoples if it is in our national interest to do so and if it is in the interests of indigenous people. For that to be the case we require some of our outstanding concerns to be addressed. In fact, when it comes to human rights instruments like this one it is the norm, and quite appropriately our preference, that they be adopted by consensus to ensure broad support. At this point it is very clear that consensus has not been reached. Indeed, it is our view that the current text has been put forward much too hastily for adoption by the Human Rights Council. That is obviously disappointing, and hopefully some more work can be done to reach that consensus between now and when the ultimate vote is taken—although at this stage it would appear that that is rather unlikely.

By way of general comment let me say that we need a declaration that is focused on making a real, positive difference in the circumstances of indigenous people. I share the view that we need a declaration that is clear, transparent and capable of implementation. Our concern is that the current text is confusing and would risk endless and conflicting interpretations and debate in its application. There are a series of very specific concerns, and some of them have been mentioned in the debate so far.

Firstly, there is a concern in relation to the provisions about self-determination. Let me read to you current article 3 of the text as it stands:

All peoples have the right to self-determination. By virtue of that right they may freely determine their political status and freely pursue their economic, social and cultural development.

Self-determination has significant meaning in public international law, and we are quite appropriately concerned that references to it in the current text could be misconstrued as conferring the right of secession upon indigenous peoples. Let me read out to you a definition of the principle of self-determination:

The principle of self-determination, often seen as a moral and legal right, is that every nation is entitled to a sovereign territorial state, and that every specifically identifiable population should choose which state it belongs to, often by plebiscite. It is commonly used to justify the aspirations of an ethnic group that self-identifies as a nation toward forming an independent sovereign state, but it equally grants the right to reject sovereignty and join a larger multi-ethnic state.

Senator Moore mentioned that self-determination in this context does not mean that indigenous peoples would seek to exercise their right to self-determination by way of a separate entity. Well, if it does not mean that, why does it say so in the current text of the declaration? If it does not mean that, why wouldn’t we clarify the text and amend it such that a broader consensus can be reached? Those are questions that will need to be answered.

We also have very serious concerns about the provisions in relation to land and resources. The current provisions on land and resources appear to ignore today’s realities and we believe them to be unworkable and unacceptable. As they currently stand they would appear to require the recognition of indigenous land rights to lands now lawfully owned by other citizens, both indigenous and non-indigenous. In fact, it is our view that the text as it currently stands does not sufficiently recognise third-party rights—in particular, the rights of third parties to access indigenous land, heritage and cultural objects where appropriate under our laws. Another example of that relates to the inclusion of intellectual property rights. We do not support the inclusion of intellectual property rights for indigenous peoples in the text of the declaration. While we protect our Indigenous cultural heritage, traditional knowledge and traditional cultural expression to the extent that they are consistent with Australian and international property law, we will not provide sui generis intellectual property rights for Indigenous communities as envisaged in the declaration.

We are concerned also about the inclusion in the text of the declaration at present of what appears to be an unqualified right of free, prior and informed consent for indigenous peoples on matters affecting them. Senator Payne has talked about that. That provision would seem to imply that they may exercise the right of veto over all matters of state, including national laws and administrative matters. We do support the full and active engagement of indigenous peoples in democratic decision-making processes, but no government can or should accept the notion of creating different classes of citizenship.

Finally, we do not support the text as it currently stands which would appear to place indigenous customary law in a superior position to national law. Customary law is not law in the sense that modern democracies use the term; it is based on culture and tradition and should not override national laws. Very specifically, I strongly support the view that customary law should not be used selectively as an excuse to permit the exercise of practices by certain indigenous communities which would be unacceptable in the rest of the community.

A suggestion was made that the text is aspirational and not legally binding. While that is true, the position put forward by Australia, New Zealand and the United States is that we need a text that is capable of implementation and that represents a standard of achievement that various countries can be measured against. In summing up, previous speakers on the government side have made the point that this is a declaration that we would like to be able to support. It is very clear that at this stage a consensus has not been reached. We very strongly encourage all of the relevant states that are participating in the consultations and negotiations to do everything that they can to reach that consensus between now and 13 September—or even after that if that is necessary. But at this point in time, I support the proposition that it is not in our national interest or in the interests of Indigenous people for Australia to support the adoption of the proposed declaration in its current form.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I rise this afternoon to provide some support for the call put forward this afternoon for the need for the Australian government to support the adoption of the proposed United Nations Declaration on the Rights of Indigenous People. After 20 years of long, hard and considered work and debate internationally through the United Nations, there is an intention to put this declaration before the current session of the United Nations General Assembly sometime this week. I have to say that the government’s response is disappointing but not unexpected. Essentially, what they are saying is that they will not be supporting this declaration because it does not line up with their policy on Indigenous affairs. We have seen that unfold quite dramatically in the last three months in relation to the Northern Territory.

This declaration has evolved through a long process which has stretched from 1982, when it was first suggested that a human rights standard be developed by a working group. In 1985, that working group began preparing the draft declaration. In 1993, the working group agreed on the final text. There have been further amendments to that text recently. There was also a world summit in 2005. In 2006, the fifth session of the United Nations Permanent Forum on Indigenous Issues called for the adoption of the declaration. In June 2006, the United Nations Commission on Human Rights, which is now called the Human Rights Council, endorsed and adopted this declaration. It is pretty much coming down the final straight and heading to the finish line.

It is disappointing that Australia will not be there leading the world when it comes to forging a path on indigenous issues. Unfortunately, we have never been able to step up to the mark when it comes to those issues. Canada and New Zealand have some concerns with this. If we have a look at what is happening over in Norway and other places, we see that some countries have proven to be world leaders when it comes to dealing with indigenous people. But Australia never seems to have gotten it quite right. Australia remains among a group of only seven states to delay the final adoption of this important and long-overdue declaration. We stand with Canada, Columbia, Guyana, New Zealand, the Russian Federation and Surinam, who have all publicly called for further negotiations to redraft the central provisions of the declaration. It is sad to think that this could lead to unacceptable delays in the adoption of the declaration. We run the risk of the declaration never being adopted at all or its provisions being so weakened and undermined as to be meaningless, denying indigenous peoples the protection to which they are entitled. Amnesty International believes that the adoption of the declaration is a critical step towards ending the pervasive human rights violations that are faced by indigenous people right around this globe.

The declaration calls on states to work closely with indigenous people in ensuring that their rights are protected. This is where the government’s intent is fundamentally different to the intent of the declaration. The declaration points to self-determination. This government has publicly said that it has a policy of assimilation. The declaration talks about intellectual property rights. There has long been a call by Indigenous people in this country for their intellectual property rights to be recognised through research and through legislation, particularly when it comes to Indigenous art. The declaration calls for the recognition of customary law. There is some bizarre notion that Indigenous people here would seek to have their customary law override any other sort of judicial law. In fact, what Indigenous people here are calling for is recognition and respect for that customary law. I have not met one Indigenous person who believes that their customary law should override criminal law. (Time expired)

Question put:

That the motion (Senator Bartlett’s) be agreed to.