UN Declaration on the Rights of Indigenous Peoples

Subject: UN Declaration on the Rights of Indigenous Peoples

Dear All

As many of you I’m sure will know, last September the General Assembly of the United Nations passed the historic Declaration on the Rights of Indigenous Peoples. The Declaration was supported by 144 countries and Australia was one of only 4 countries, together with the US, Canada and NZ, to oppose the Declaration.

Following its election in November last year, the Rudd Government indicated that it would consult with stakeholders about reversing Australia’s opposition to the Declaration. As you may also know, in
recent weeks the Canadian Parliament has also stated that it will be removing its opposition.

Below is a draft letter, addressed to Kevin Rudd, Stephen Smith, Robert McClelland and Jenny Macklin, expressing strong support for endorsement of the Declaration by the Australian Government. As you will see, the letter comments on the significance of the Declaration and outlines why we consider that Australia’s opposition to it should be reversed.

The purpose of this email to seek your organisation’s endorsement of the draft letter. We are very concerned to ensure that pressure is maintained on the Australian Government to reverse its opposition to the Declaration. In this regard, it would be extremely beneficial if we can get as many organisations as possible to endorse the letter.

Endorsees will be listed in a schedule to the letter.

If you are happy for your organisation to endorse this letter, please send an email to Ben Schokman at humanrights@vicbar.com.au before 5pm next Wednesday, 14 May 2008. In addition, please feel free to forward this email to other individuals or organisation who have been left off this list.

Any questions may be directed to Ben Schokman of the Human Rights Law Resource Centre on 0403 622 810 or Megan Davis of the Indigenous Law Centre on (02) 9385 2252.

Thanks and regards

Ben Schokman Megan Davis
HRLRC Indigenous Law Centre

Ben Schokman
Human Rights Law Resource Centre Ltd
Level 1, 550 Lonsdale Street
Melbourne VIC 3000
P: + 61 3 9225 6653
F: + 61 3 9225 6686
E: humanrights@vicbar.com.au
W: http://www.hrlrc.org.au

Megan Davis | Director, Indigenous Law Centre
Senior Lecturer, Faculty of Law
The University of New South Wales
Sydney NSW 2052, Australia
Phone:+61 (2) 9385 2252
Fax:+61 (2) 9385 1175
Web: http://www.law.unsw.edu.au/staff/DavisM/

ILC Web:http://www.ilc.unsw.edu.au/



The Hon Stephen Smith MP
Minister for Foreign Affairs
By Email: Stephen.Smith.MP@aph.gov.au

The Hon Robert McClelland MP
Attorney General of Australia
By email: R.McClelland.MP@aph.gov.au

The Hon Jenny Macklin MP
Minister for Families, Housing, Community Services and Indigenous
Affairs By email: JMacklin.MP@aph.gov.au

Dear Mr Smith, Mr McClelland and Ms Macklin

UN Declaration on the Rights of Indigenous Peoples

The Human Rights Law Resource Centre (HRLRC) welcomes the Australian Government’s recent statement that it is consulting with stakeholders about reversing Australia’s opposition to the UN Declaration on the Rights of Indigenous Peoples (Declaration).

The HRLRC, together with the list of organisations contained in the attached scheduled, strongly supports endorsement of the Declaration by the Australian Government. Endorsement of the Declaration would send a strong message to Indigenous Australians, and indeed to the international community, that the Australian Government remains committed to respect the human rights of all Australians and its intention to ‘close the gap’ and improve the lives of Indigenous peoples.

The Declaration represents an important standard for the treatment of Indigenous peoples. Significantly, the Declaration will enhance harmonious and cooperative relations between the Australian Government and Indigenous peoples. A human rights framework, as envisaged by the Declaration, will serve as an invaluable guide to the development of appropriately adapted policies for Indigenous communities.

Importantly, it will promote the participation and engagement of Indigenous peoples in the political process and in matters which directly affect them.

Australia must join the consensus of the international community.

As one of only four countries who initially opposed the Declaration, removing its opposition to the Declaration would enable Australia to join the consensus of the rest of the international community on the fundamental freedoms and human rights of Indigenous peoples. Indeed, in recent weeks, the Canadian Parliament has voted in favour of a resolution to remove its objection and endorse the Declaration, thereby leaving Australia, the United States and New Zealand as the only countries to remain opposed to the Declaration.

Australia’s opposition to the Declaration is based on myths and misperceptions

The HRLRC considers that the Australian Government’s opposition to the Declaration was based on a number of ill-conceived perceptions about the Declaration. This view is shared by the Human Rights and Equal Opportunity Commission, which considers that the Australian Government’s reasoning for opposing the Declaration has no sound base and does not interpret the Declaration consistently with international law (see, for example, HREOC’s Social Justice Report 2006).

The idea that the Declaration would give Indigenous Australians veto powers over Parliament, make traditional law superior to national law and create the potential for Indigenous compensation claims over land is misconceived. The Declaration does no such thing. Rather, it is a non-binding human rights instrument of the General Assembly, which means that it has no formal legal status in the Australian legal system and cannot elevate Aboriginal customary law or any other Indigenous right over domestic law. The Declaration recognises the human dignity of Indigenous people, while respecting the integrity of sovereign states.

The Declaration is aspirational because it elaborates upon standards that states and their public institutions should aspire to and respect and achieve in their relationships with Indigenous communities and organisations. It is an instrument of dialogue and creates no new rights in international law; rather, it establishes a framework of those human rights that already exist in international law as they apply to Indigenous peoples.

The HRLRC, together with list of organisations contained in the attached scheduled, strongly recommends that the Australian Government endorse the Declaration as a matter of priority.

Yours sincerely

Philip Lynch
Megan Davis

Human Rights Law Resource Centre Indigenous Law Centre Ph:
(03) 9225 6695 Ph: (02) 9385 2252
megan.davis@unsw.edu.au http://www.hrlrc.org.au