United Nations Declaration on the Rights of Indigenous Peoples

The United Nations Declaration on the Rights of Indigenous Peoples elaborates on human rights standards as they apply specifically to Indigenous peoples.

The UN Declaration on the Rights of Indigenous People (UNDRIP) was adopted by the UN General Assembly on 13 September 2007. The Declaration was the result of over 20 years of drafting, negotiating and consultation (Davis, 2007). The central tenet of the Declaration is that indigenous peoples have a right to self-determination (Davis, 2007). No new rights are created by the Declaration, instead it elaborates upon existing human rights in the context of the specific cultural, historical, social and economic circumstances of indigenous peoples.

These include rights to:

• practice culture, traditions and customs;
• not be forcibly removed from their lands;
• not be subject to forced assimilation or destruction of their culture or lands;
• be free from discrimination based on their indigenous origin or identity;
• autonomy and self-government; and
• participate in decision-making regarding matters which would affect their rights. (UNDRIP, 2007).

The Declaration also requires states, in consultation with indigenous peoples, to:

• combat prejudice, eliminate discrimination and promote tolerance;
• consult and cooperate with indigenous peoples to obtain consent before implementing legislative or administrative measures that may affect them;
• take effective, and where appropriate, special measures to ensure the continuing improvement of indigenous economic and social conditions; and
• give legal recognition and protection to indigenous lands, territories and resources. (UNDRIP, 2007).

Development

Governments throughout the world worked directly with Indigenous peoples to develop a significant human rights document, with the drafting of the United Nations Declaration on the Rights of Indigenous Peoples beginning in 1985 (Macklin, 2009).

Many prominent Indigenous Australians, including Les Malezer, Professor Lowitja O'Donohue, Professor Mick Dodson, Tom Calma, and Megan Davis played a significant role in developing the draft Declaration (Macklin, 2009).

Effect

The Declaration is not binding on state parties but instead provides a framework for global efforts to promote and protect indigenous peoples' rights (Gargett et al, 2013).

Although the Declaration does not provide a complaints procedure, other United Nations bodies such as the Committee on the Elimination of Racial Discrimination (CERD) and the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People can assess state performance concerning indigenous peoples (Davis, 2007).

Opposition

Australia was one of four states who voted against the adoption of the Declaration. The United States, Canada, and New Zealand also voted against the Declaration. Australia's vote was motivated by concern regarding Article 26 of the Declaration which states that indigenous people have a right to own and control lands that they have traditionally used (ABC News, 2007). Australia further criticised the Declaration in the General Assembly, stating that the declaration placed customary law over national law (ABC News, 2007). In 2006, Australia stated they do 'not accept that it cannot, or should not, make any decisions directly relating to the rights and interests of Indigenous Australians without their 'informed consent' (CERD, 2006). 

Australia

Following the election of the Rudd Labor Government, Australia reversed its stance and formally supported the Declaration on 3 April 2009 (Gardiner-Garden, 2011). Australia's record of compliance however has been poor (UN Human Rights Council, 2017). For example, the Special Rapporteur raised concerns about the extraordinary challenge and burden of proof placed on Indigenous peoples seeking native title determinations in the context of the historical forced removal and dispossession policies of Australia (Special Rapporteur on the Rights of Indigenous People, 2017). Australia's international response to criticisms has been lackluster and generally limited to asserting that Australia has not contravened its responsibilities (CERD, 2006; 2017).

Australia pledged to give practical effect to the Declaration and the World Conference on Indigenous Peoples as part of its candidacy to become a member of the Human Rights Council for 2018-2020 (UN Human Rights Council, 2017).

In 2022, two parliamentary inquiries commenced into the application of UNDRIP. The first, by the Senate Legal and Constitutional Affairs Committee, lapsed after a change of government in May 2022. Submissions received by the first inquiry were included in the second which was undertaken by the newly appointed Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs (JSCATSIA) (Australian Parliament, 2022).

At the time of writing, 7 October 2022, the JSCATSIA inquiry was still active.

The JSCATSIA inquiry has particular reference to:

1. the international experience on implementing UNDRIP


2. options to improve adherence to the principles of UNDRIP in Australia


3. how the implementation of the Uluru Statement from the Heart can support the application of the UNDRIP


4. any other related matters (Australian Parliament, 2022). 

New Zealand

Initially opposing UNDRIP, New Zealand changed its position to endorsement in 2010 (Charters et al, 2019).

In 2019, New Zealand announced it would develop a plan to implement UNDRIP in relation to the Māori People (Charters et al, 2019). Following this, the Minister for Māori Development appointed a technical advisory group, the Declaration Working Group (DWG), to support the provision of advice on the form and content of a UNDRIP plan, and an engagement process with whānau, hapū and iwi people (Charters et al, 2019).

The DWG's Report, He Puapua, refers to a 'breaking of the usual political and societal norms and approaches' and outlines a plan to realise UNDRIP in Aotearoa/New Zealand by 2040 to coincide with the bicentenary of the signing of the Treaty of Waitangi. Recognising the importance of Maori self-determination, He Puapua also establishes a guideline to facilitate the return of land to Māori (where possible) beyond Treaty settlements.

Canada

Canada announced its endorsement of UNDRIP in 2010 under the Harper Government 'in a manner that is consistent with our Constitution and legal framework' (Yellowhead Institute, 2020).

In 2016, Canada announced it would 'fully implement UNDRIP without qualification', and British Columbia, in 2019, became the first Canadian jurisdiction to pass UNDRIP legislation (Yellowhead Institute, 2020).

In June 2021 Canada implemented the United Nations Declaration on the Rights of Indigenous Peoples Act 2021, which provides a coherent guideline on how to best implement UNDRIP in Canada (Yellowhead Institute, 2020). The Act requires the government to work in partnership with First Nations, including the Inuit and the Metis Nation, to develop an action plan that identifies specific areas and measures relating to cultural heritage that need to be addressed. According to the Act, the government must fulfil three related legal obligations in consultation and cooperation with Indigenous Peoples: 

• Taking all measures necessary to ensure consistency of federal laws with UNDRIP


• Developing an action plan by June 2023 to achieve the objectives of UNDRIP


• Developing annual reports on progress and submitting them to Parliament.

South Africa

South Africa's political transition away from apartheid saw a trend towards 'global norms and standards of human rights' (Crawhall, 2011). Subsequently, South African diplomats and other African states engaged with indigenous communities and promoted UNDRIP. This played a significant role in the promotion of UNDRIP in Africa, where only 3 of the 53 African states abstained from voting in favour of UNDRIP (Crawhall, 2011). Though South Africa has not formally adopted the principle of free, prior and informed consent within its legislative system, the spirit of the principle has permeated throughout its development policies, legislation, and case law (Crawhall, 2011). Furthermore, the promotion of public participation in major development policies is considered to be a precursor to a more formal incorporation into law of the principle of free, prior and informed consent (Mukwevho, 2022).

References

Glossary