On 13 September, 2007 the UN General Assembly voted, by an overwhelming majority, to adopt the United Nations Declaration on the Rights of Indigenous Peoples. 143 member states voted in favour of the declaration, 11 abstained and 4 (Australia, New Zealand, Canada and the United States) voted against it. The Declaration thus became the latest document in the already dense forest of international instruments by which the UN purports to protect human rights.
With the change of government last year, Australia's official attitude to the Declaration changed. On 14 September, 2007 the then Shadow Minister for Indigenous Affairs (and now Minister), Jenny Macklin, announced that:
Ms Macklin's characterisation of the purpose and effect of the declaration is glib, to say the least.
The Opposition has and, I am sure, those attending this Conference would have no problem with the idea of supporting the aspirations of indigenous people and their children having an equal chance in life. Over decades, successive Australian Governments have spent---not always wisely---billions of dollars attempting to lift the living standards and prospects of our indigenous population. I might say that it has been Liberal Ministers for Aboriginal Affairs who have been the pathbreaking reformers in this area, from William Charles Wentworth, the first Commonwealth Minister to take a deep interest in Aboriginal affairs, who during the Gorton and McMahon Governments took advantage of the newly-extended Commonwealth powers in this area following the 1967 referendum (itself an initiative of the Holt Government); Dr John Herron, the father of "practical reconciliation"; and Mal Brough, who famously pioneered the intervention in the Northern Territory which the new Labor Government has felt it necessary to embrace, albeit half-heartedly.
Further, it cannot be said that indigenous Australians are currently devoid of specific statutory protections, which augment the protections which all Australians enjoy under the common law. Confining myself to Commonwealth legislation alone, the Racial Discrimination Act 1975, the Family Law Act 1975, the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, the Human Rights and Equal Opportunity Commission Act 1986, the Higher Education Funding Act 1988 and the Native Title Act 1993, to name just a few, all make special provision for the protection of indigenous rights and interests. The Evidence Amendment Bill 2008 currently before Parliament contains special evidentiary provisions for indigenous laws and customs.
There is a temptation, to which we are witness at the moment in the context of the debate about whether Australia needs a Bill of Rights, to gloss over our common law rights, to see them as somehow inferior if they are not codified in a constitutional or quasi-constitutional document or sanctified by reference to some international instrument or another. Last week, when I announced the Opposition's policy on a Bill of Rights for Australia, I said:
It is, in my view, in the same context that the consideration of the Declaration on the Rights of Indigenous Peoples needs to occur.
On 11 March this year, I asked Senator John Faulkner, the Special Minister of State, whether it was the Rudd Government's intention that Australia should become a signatory to the Declaration. His reply was that:
Senator Faulkner's characterisation of the document is consistent with its text. The Declaration describes itself as a non-binding document, proclaimed by its terms (in the final recital) as "a standard of achievement to be pursued in a spirit of partnership and mutual respect". So at first blush---and here's a surprise from the Rudd Government---the symbolism seems to be the important thing. However, are we to detect from Senator Faulkner's observation that the Declaration "needs to be seen in the context of Australia's domestic law", an implicit acknowledgment that the Declaration might not in fact be a seamless fit with the domestic law of this country? Or is it of symbolic significance alone?
If the Declaration is merely a piece of Rudd Government and UN window dressing, what do Australians, including indigenous Australians, have to gain from this country acceding to it? Or is there something in Senator Faulkner's hint about domestic law? Concern about the possible implications of the Declaration in domestic law was one of the principal reasons why the four democracies which voted against adoption of the Charter, chose to do so.
Let me turn to the terms of the Declaration itself. It is the culmination of about 25 years of discussion and agitation for action at an international level on behalf of the world's indigenous peoples. The text itself is the product of about 10 years' diplomatic wrangling. The process was so slow because one of the core provisions of the Declaration is the right to self-determination. How that sits with national sovereignty, and whether any resolution of that issue has in fact been addressed by the text, is a matter with which I will deal in a moment.
As I have said, when the Declaration was adopted by the UN General Assembly on 13 September, 2007 only 4 nations---each of them like-minded liberal democracies with significant indigenous populations---voted against it.4 It is noteworthy that these nations lead the world in the comprehensive domestic laws and policies to protect and advance the interests of their indigenous populations, while many of those abstaining or not present for the vote have longstanding or seemingly intractable tribal or separatist movements within their borders. Indeed, some voting for adoption which have their own such conflicts, like Sri Lanka and Indonesia, are content to view their populations as indigenous in globo, which leaves uncertain the consequences for the demonstrably non-indigenous elements of the population.
The Declaration opens with 24 recitals, most of which are uncontroversial (although, as is the nature of these things, somewhat piously expressed). Here are a few examples:
Others are infected with heady doses of a kind of Rousseauvian romanticism:
The final recital states that the declaration is proclaimed as "a standard of achievement to be pursued in a spirit of partnership and mutual respect". This is the provision which Senator Faulkner apparently had in mind when he said that the Declaration is an aspirational document and is not intended to have legal force.
Whether the Declaration will always have that status is a matter for conjecture and, in my opinion, a matter of serious concern, to which I will return.
It is curious, given the purportedly aspirational nature of the document, that the 46 Articles which follow are all expressed in terms of rights, guarantees and mandatory requirements for States.
Some of the provisions in the Articles cannot be quibbled with. For example, Article 2 states that:
However, there are other aspects of the document which are deeply problematic.
In the first place, surprisingly, the Declaration contains no definition of the expression "indigenous peoples". This is a striking omission for a document whose very point is to declare their rights. It has been suggested by some scholars that the definition is to be found by reference to other international instruments, in particular the 1989 International Labour Organisation's Convention No 169.5 This defines "indigenous peoples" as:
It goes on to provide that "self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply".
There are two principal problems with the omission of a definition from the text of the Declaration. First, and most obviously, if the ILO definition is meant to apply, its omission from the text means that the interpretation of the Declaration will be governed by the language of an international instrument that may not have been adopted by the signatory states. Australia is itself not a ratifying party to the ILO Convention. Second, the requirement of self-identification means that the Declaration has the potential to be misused by separatist or minority groups seeking to exploit claims to self-determination or control of resources.
Next, Articles 3 and 4 provide that indigenous people have the right to self-determination. This concept is not defined---the text simply provides that in pursuance of that right, indigenous peoples may freely determine their political status, whatever that means, and have the right to autonomy or self-government in matters relating to their internal and local affairs, whatever they might be. This has the clear potential to place customary law above national law. It must also be reconciled with Article 46, which provides that the Declaration does not imply any right to perform any act contrary to the UN Charter, or that might "dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States". However, it is possible to imagine an international court or tribunal being persuaded by the argument that allowing customary law to prevail over national law will not affect the territorial integrity or political unity of a state, especially if those concepts are given a narrow reading. It might even be argued that the concepts of territorial integrity and political unity should themselves be interpreted so as to accommodate indigenous self-determination.
The states opposing the text of the declaration deposited, in accordance with General Assembly practice, Statements of Reasons for their negative votes.6 Among their grounds of opposition they pointed to the following provisions:
Under Australian law, the Crown retains title to certain resources under privately-owned land, which may be exploited without the consent of the title-holder (subject to reasonable compensation)7. A right to negotiate is provided under the Native Title Act 1993 which, in itself, exceeds the rights available to non-indigenous people. However, this Article not only seeks to set the interests of indigenous people at a higher level than that enjoyed by the rest of the population, but also beyond the extended regime in the Native Title Act. Further, it requires consent in respect of lands "affected" by the exploitation, which is a much wider concept.
The United States, in particular, has criticised the text for failing to be transparent and capable of implementation.8 Its objections are worth noting for their clear-eyed analysis of the human rights implications:
These concerns appear to be fully justified.
There are some other provisions which are potentially problematic:
Before I turn to consider how this document might collide with domestic law, I need to emphasise that the Opposition is not opposed to the creation of international instruments for the protection of indigenous peoples. Instruments to provide for international assistance have their value, particularly where states are unable or unwilling to accord rights or vital assistance to disadvantaged groups. It is a testament to this that Australian representatives were closely and constructively involved in the process that ultimately produced this document. This process was helpfully summarised by my colleague, Senator Marise Payne, who during the Howard Government was the Chair of the Human Rights Subcommittee of the Parliament's Joint Standing Committee on Foreign Affairs, Defence and Trade, and is widely acknowledged as one of the Parliament's most articulate and committed defenders of human rights. Senator Payne told the Senate last year:
I respectfully endorse those comments. The problem is that, in its ultimate form, this is not, as Australia, the United States, Canada and New Zealand have explained, a document that can be implemented meaningfully. It says at once that it is an aspirational document and goes on to state a series of minimum demands. In places it is almost unintelligible, in other places it seeks to guarantee rights that would seriously displace the rights of others, and throughout it places individual and collective rights in the same basket, without providing any guidance as to how to resolve the inevitable tensions between them. However, what most concerns me is the possibility that this is not a mere piece of aspirational doggerel, but a roadmap to a collision between this instrument and Australian domestic law.
Potential domestic legal consequences of accession
Is the Declaration merely an aspirational document as claimed? Article 43 describes the rights recognised by the Declaration as constituting "the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world". Those are odd words for an aspirational document.
On a more fundamental level, the significance of the Declaration lies not in its formal legal effect: declarations of themselves do not constitute binding international law. Rather, they create a perception that its provisions reflect a State's opinio juris and thus go towards establishing customary international law.10 Further, there is a body of law in this country that would go further than that and, through judicial fiat, start implementing the Declaration's programme without regard to Parliament, should Australia accede to it at the UN.
Members of this audience would be well familiar with that monument to the jurisprudence of the Mason High Court, Minister for Immigration and Ethnic Affairs v. Teoh.11 By a 4-1 majority,12 the Court held that although a Convention ratified by Australia does not become part of Australian law unless its provisions have been validly incorporated into municipal law by statute, the ratification was an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers would act conformably with the Convention. It was not necessary that a person seeking to set up such a legitimate expectation be aware of the Convention or personally entertain the expectation. It is enough that the expectation is reasonable in the sense that there are adequate materials to support it.
The decision was controversial, to say the least. On at least two occasions,13 the High Court has had a chance to consider it: several members of the Court expressed a preference for the dissenting position, but Teoh has not so far been overruled. The decision has since been applied in many lower courts. The fact is, if decision makers in the bureaucracy wish to take the Declaration into account there is nothing to stop them doing so, and any expression of an intention to do so may create a "legitimate expectation" that the terms will be applied, which may be justiciable at the instance of indigenous claimants.
While I very respectfully doubt that the present High Court will wish to reinvigorate Teoh (and I interpolate here the reassuring fact that the judge who dismissed Teoh's arguments at first instance was the new Chief Justice, Robert French), the case remains a touchstone for rights activists and continues to generate optimistic journal articles. All that may be needed to push this Declaration into domestic law are some sympathetic decision makers at the bureaucratic level or legislatively-minded judges on the Federal Court willing to give Teoh another run, and a monster may be created.
This Declaration contains provisions that go well beyond the rights recognised in Australian domestic law. There is a real danger that accession to it will create a sectional jurisprudence that is fundamentally out of step with the domestic law which has been crafted by the people of this country through their elected representatives, for the benefit of all the people of this country. And this could occur at the stroke of a pen, without any reference to those elected by the people to safeguard the rights and interests of all of them.
1. Macklin, J, International Declaration on the Rights of Indigenous Peoples, Media Statement, 14 September, 2007 at http://www.alp.org.au/media/0907/msia140.php.
2. Senator George Brandis, The Debate We Didn't Have to Have: The Proposal for An Australian Bill of Rights. Speech to James Cook University Law School, Townsville, August 14, 2008.
3. Senate Hansard, 11 March, 2008, p. 497.
4. The abstaining votes were Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine.
5. Odello, M, International Focus: United Nations Declaration on Indigenous Peoples, (2008) 82 Australian Law Journal 306, 308.
6. Statement by NZ Ambassador to the UN, Rosemary Banks, on behalf of Australia, New Zealand and the United States, 16 October, 2006, issued by the United States Mission to the United Nations press office.
7. See, for example, the Mineral Resources Act 1989 (Qld), ss 71-78 and 265-269.
8. Explanation of vote by Robert Hagen, US Advisor, September 13, 2007.
9. Senate Hansard, 10 September, 2007, p. 53.
10. See Charters, C, Indigenous peoples and international law and policy, (2007) 18 PLR 22 at 33 ff.
11. (1995) 183 CLR 273.
12. Mason CJ, Deane, Toohey and Gaudron JJ, McHugh J dissenting.
13. Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 214 CLR 1; U v. U (2002) 211 CLR 238.