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Issue # 1408      29 April 2009

Govt wins praise, but also warned as Australia supports UN Declaration

Australia has won Indigenous and international praise for finally supporting the United Nations Declaration on the Rights of Indigenous Peoples. But it has been warned that it risks being viewed as hypocritical unless it acts swiftly to ensure its policies and initiatives such as the Northern Territory intervention reflect its international obligations.

Prime Minister Kevin Rudd’s Labor government fulfilled a pre-election commitment and shook off part of the legacy of its predecessor to back the non-binding document, which campaigners consider the most comprehensive tool to advance the interests of Indigenous peoples the world over.

The move earned congratulations from the UN Permanent Forum on Indigenous Issues (UNPFII) and, while regarded with scepticism by some Northern Territory intervention opponents, Aboriginal and Torres Strait Islander people largely welcomed it.

With Mr Rudd away in London attending the G20 Summit, the task of expressing the government’s support for the “landmark” Declaration fell to federal Indigenous Affairs Minister Jenny Macklin.

At a ceremony in Parliament House, Ms Macklin told guests, including Opposition representative ACT Liberal Senator Gary Humphries, Aboriginal and Torres Strait Islander Social Justice Commissioner Tom Calma, UN agency representatives and members of the diplomatic community, that the government hoped its support would help “re-set” its relationship with Indigenous Australians.

More than 20 years in the making, the Declaration sets out basic standards for the recognition and protection of Indigenous peoples’ rights worldwide, including identity, land and resources, self-determination, freedom from discrimination, culture, traditions and language.

It was formally adopted by the UN General Assembly on September 13, 2007, with the support of 143 member states and the opposition of just four – Australia, Canada, the United States and New Zealand.

At the time, the then-Howard government claimed the Declaration would elevate customary law above national law. In recent weeks, Shadow Attorney-General Liberal Senator George Brandis has labelled the Declaration “deeply flawed” and said it would be a grave error for Australia to support it.

However, no such fear was evident on Friday when Ms Macklin said Australia joined the international community to affirm the aspirations of all Indigenous peoples.

“Today, Australia changes its position,” Ms Macklin told those gathered. “Today, Australia gives our support to the Declaration.”

Ms Macklin said the Declaration would not affect existing Australian law, but the universal aspirations contained in it could help build understanding and trust.

“This will take time. Relationships will be tested and will evolve,” she said. 

“The Declaration gives us new impetus to work together in trust and good faith to advance human rights and close the gap between Indigenous and non-Indigenous Australians.”

Ms Macklin said the Declaration recognised the legitimate entitlement of Indigenous people to all human rights, based on principles of equality, partnership, good faith and mutual benefit.

Article 1 of the Declaration states: “Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognised in international law.”

Ms Macklin also acknowledged Articles 8 and 10 of the Declaration which say that “Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture” and “Indigenous peoples shall not be forcibly removed from their lands or territories”.

“Today Australia takes another important step to make sure that the flawed policies of the past will never be re-visited,” Ms Macklin said.

The Minister reiterated the government’s intention to introduce legislation in the Spring session of Parliament to reinstate the Racial Discrimination Act 1975 in “prescribed communities” in the NT. 

The legislation was suspended to enable particular measures under the intervention including welfare quarantining which, along with planned compulsory acquisition of land, has earned the government bitter and ongoing criticism.

Speaking after Minister Macklin was Australian of the Year Professor Mick Dodson who has expressed concerns with aspects of the intervention. 

Professor Dodson passed on the congratulations of the UNPFII, of which he is rapporteur, and thanked the many Indigenous and non-Indigenous people who had been part of the Declaration’s almost 25-year drafting process. 

He said it would be easy to raise anxieties by taking particular articles of the Declaration out of context, but the document should be viewed in its entirety.

“All of its parts make this document one; it has to be approached in this way,” Professor Dodson said.

Embrace

“No state needs to be concerned of its contents but should embrace it as a framework for public policy, law and practice in a partnership of good faith with Indigenous people within their territories.”

Professor Dodson said the existence of human rights and human rights standards was not the source of indigenous disadvantage.

“Human rights do not dispossess people,” he said. “Human rights do not marginalise people. Human rights do not cause their poverty and they don’t cause the gaps in life expectancy and other life outcomes.

“It is the denial of rights that is the largest contributor to these things. The value of human rights is not in their existence; it is in their implementation. The standards have been set. It is up to us to meet them.”

The 16-month delay between the 2007 federal election and the Rudd government’s support for the Declaration had frustrated many in the Indigenous communities.

And there had been suggestions the government would temper its support for the Declaration with riders or qualifications to some of the Declaration’s 46 articles, so the straightforward support generated some relief amongst those gathered in Canberra.

Social Justice Commissioner Tom Calma said it was a watershed moment that built on the government’s Apology and commitments to Closing the Gap and establishing a new national Indigenous representative body.

He said the government’s support for the Declaration firmly re-established Australia’s leadership role in the international human rights system and the government should now build understanding of the Declaration “so we can give meaning and content to its provisions”.

“It should be clear that on any measure, Aboriginal and Torres Strait Islander peoples remain marginalised in Australia and face entrenched poverty and ongoing discrimination on a daily basis,” Mr Calma said.

Standards

“The Declaration could be put to immediate use in Australia by providing guidance and articulating minimum standards to help the government in addressing some of the discriminatory elements remaining in the NT intervention.”

Lawyer and Director of the University of NSW Indigenous Law Centre Megan Davis said she was thrilled about the support for the Declaration 

“I think it’s a great step forward for Australia,” Ms Davis told The Koori Mail newspaper, although she added that the challenge remained for the Declaration to become a “living document”.

“This is the great conundrum of international human rights law because when you nominally give recognition or protect a human rights law, it’s a very different thing to the implementation of it.” 

Former Aboriginal and Torres Strait Islander Commission chairperson Lowitja O’Donoghue was also positive, but declared that the support had come “not before time”.

“Basically, I’ve been around this stuff for over 20 years,” Professor O’Donoghue said. “This support is good but of course we have to deal with the suspension of the Racial Discrimination Act (RDA) in the Northern Territory and the like. The Minister did mention that that’s coming, but it must be sooner rather than later.”

Co-Chairperson of the Stolen Generations Alliance Deb Hocking said the government’s support for the Declaration was “a bit like the Apology”.

“They said it would never happen and it has happened,” she said. “Even though the Declaration is not legally binding, I think it is morally binding... I think we’re going to see some progress in this country, especially for the Stolen Generations.”

Tasmania’s Rodney Dillon, an Indigenous rights campaigner for Amnesty, said that while it would take generations to fix some of the problems facing Indigenous Australians, support for the Declaration had brought Australia into line with other countries on an international law that “we should have already been in line with”.

National Native Title Council Chairperson Brian Wyatt said the statement of support was “very conciliatory and something we can work with” but warned the RDA would need to be reinstated in the NT if it was to mean anything.

“You can’t have that sort of contradiction,” he told The Koori Mail.

“We need to look at things like the intervention, restoring rights in the community – people’s rights to determine their rights in their communities without intervention – and the issue of free, prior and informed consent.”

Supporters

Others who threw their weight behind the government’s support for the Declaration included the UN Refugee Agency UNCHR, Reconciliation Australia, National Aboriginal Community Controlled Health Organisation (NACCHO) chairperson Dr Mick Adams, chairperson of the Indigenous Land Corporation Shirley McPherson, and South Australia’s Aboriginal Legal Rights Movement (ALRM).

However, ALRM CEO Neil Gillespie said Labor had yet to honour a pre-election commitment to increase Aboriginal legal aid to the same level as mainstream legal aid in order to address the appalling discrepancy in funding and Aboriginal incarceration.

There was also some very adverse reaction to the government’s support for the Declaration, including from the Tasmanian Aboriginal Centre whose state secretary Nala Mansell-McKenna described it as a “cynical exercise” and “nothing but a con job”.

“Jenny Macklin is trying to fool the public into thinking that by endorsing the Declaration now, Aborigines will be somehow better off,” Ms Mansell-McKenna said.

“For any real outcomes to be made for Aboriginal people, the Declaration must be legislated and passed through Parliament so that it can be made a law of Australia.  Ms Macklin, however, understands that if she was to do this, she would be liable to be sued for policies such as the NT intervention and the lack of land and fishing rights given to Aboriginal people as well as the lack of an Aboriginal government.” 

The Stop The Intervention Collective Sydney (STICS) said the government’s support for the NT Intervention and its insistence that Aboriginal communities sign over the land in exchange for a human right such as housing, rendered its support for the Declaration “a joke”.

“As stated in the UN Declaration, First Nations Peoples have the right to live on their ancestral lands free from racist government policies that aim to dispossess, centralise and assimilate Aboriginal populations,” said activist Monique Wiseman.

“Tokenistic”

“Signing the UN Declaration is nothing less than a tokenistic gesture like the Apology was,” said STICS member and Alice Springs town camper Barb Shaw. “The government must make action on the articles of the UN Declaration. Actions speak louder than words.”

While welcoming the government’s support for the Declaration, the Darwin Aboriginal Rights Coalition said “glaring hypocrisy” between it and the continuation of “explicitly racist policies such as the NT Intervention” made the occasion almost impossible to celebrate.

Within hours of the ceremony marking its support for the Declaration, the government was brought back down to earth by the release of the UN Human Rights Committee’s concluding observations after a review of Australia’s compliance with its international obligations under the International Covenant on Civil and Political Rights (ICCPR).

While the review earned the government kudos for its current national human rights consultations, the Apology and anti-violence measures, the committee also recommended the government redesign NT intervention measures in consultation with Aboriginal Territorians to ensure compliance with the RDA and the Covenant.

It also pushed the government on a new national Indigenous representative body and reparations, including compensation, to members of the Stolen Generations.

Amnesty International has called on the Rudd government to react promptly and positively to all UN Human Rights Committee findings on Australia.

“The Committee’s findings are a timely reminder that while the Rudd government is making some important moves in the right direction, there are significant respects in which Australia fails to meet its obligations,” said Dr Robyn Seth-Purdie, Amnesty’s Government Relations Adviser.

Also, Opposition spokesperson on Indigenous Affairs Tony Abbott admitted the former Howard government should have apologised to the Stolen Generations while in government.

“It was a mistake for us not to apologise to Aboriginal people,” Mr Abbott told an Australian Council of Social Service (ACOSS) conference in Sydney to impromptu applause.

“And I’m pleased that when Kevin Rudd did decide to apologise that he was strongly supported by the Coalition.”

About turn

It was an about turn by Mr Abbott who once described the Apology as a “sop to the Left” that would reinforce a victim mentality. However, Labor Party stalwart Warren Mundine welcomed Mr Abbott’s comments.

“I’m pleased to hear this, it shows bipartisan support is building,” said Mr Mundine, who also described the government’s support for the UN Declaration as a fantastic opportunity to redefine relationships.

“It builds on last year’s Apology and is a major step towards building trust and understanding and should have been done two years ago by the previous government.”

Many of those who spoke paid tribute to Indigenous and non-Indigenous people who worked for years to help draft the Declaration, including chair of the International Indigenous Peoples’ Caucus Les Malezer, Professor O’Donoghue, Professor Dodson, Mr Calma and his predecessor Dr Bill Jonas, and Megan Davis.

The ceremony also featured a traditional welcome to Ngambri country, the first public screening of a new documentary Apology (It’s Time) by WILL.I.AM of the US RnB outfit Black-Eyed Peas and Perth director/photographer Russell James, and a joint performance by the Young Wagilak Group of Ngukurr in Arnhem Land and the Australian Art Orchestra.

The UN Declaration on the Rights of Indigenous Peoples can be found at
www.un.org/esa/socdev/unpfii/en/drip.html.

Also online are factsheets on the Declaration produced by Australia’s Human Rights Commission (HRC) and Reconciliation Australia.

The Koori Mail



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