Submission: How implementation of the Uluṟu Statement from the Heart can support the application of the UNDRIP
Five members and associates of the Indigenous Law Centre (ILC) have made a submission to the Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs in its inquiry into the application of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The focus of the submission was the Committee’s third term of reference, ‘how implementation of the Uluṟu Statement from the Heart can support the application of the UNDRIP’. Below is a summarised version of the submission. The full submission is available here.
Gabrielle Appleby, Megan Davis, Janine Gertz, Eddie Synot & Sophie Rigney
17.11.22
In this summary we address (click to jump to each section of the summary):
The ILC has played a long-standing role in supporting the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and has significant expertise on the UNDRIP in the Australian context. The Director of the ILC, Professor Megan Davis, is one of six global experts on the UNDRIP serving on the United Nations Expert Mechanism on the Rights of Indigenous People (UNEMRIP) from 2017-2022. The UNEMRIP’s mandate is the implementation of the UNDRIP globally by states. Professor Davis was a drafter of the UNDRIP between 1999-2004 including 1999 as the UN Office of the High Commissioner for Human Rights and 2000-2002 as a lawyer from the Legal Branch of the Aboriginal and Torres Strait Islander Commissioner. She was an expert member of the UN Permanent Forum on Indigenous Issues between 2011-2016 and wrote the first UN study on Indigenous women and UNDRIP. During her time as EMRIP expert she was the lead author on the study on Free, prior and informed consent: a human rights-based approach’ (2018) and the lead author on the study on self-determination, Efforts to Implement the United Nations Declaration on the Rights of Indigenous Peoples: Indigenous Peoples and the Right of Self-determination.
In the Australian context, the UNDRIP performs an important role for the advancement of First Nations rights and self-determination. As Eddie Synot has written, its standards ‘are potent mechanisms for Indigenous peoples to speak from and be heard. UNDRIP especially provides recognition of the foundation of self-determination being key to all Indigenous rights and that Indigenous claims exist beyond the narrow understanding of Indigeneity aimed at the alleviation of socio-economic disadvantage. Perhaps most importantly, UNDRIP provides a principled road map to effect self-determination beyond abstraction’, or as Janine Gertz argues, operationalised at the local level within the context of autonomy and self-government of Indigenous Nations.
The history of structural disempowerment of First Nations in Australia, and its relationship to socio-economic disadvantage more broadly was identified by the UN Special Rapporteur on the Rights of Indigenous Peoples (2014-2020), Victoria Tauli-Corpuz in her 2017 report following her visit to Australia. The Special Rapporteur noted the policies of the Government:
do not duly respect the rights to self-determination and effective participation; contribute to the failure to deliver on the targets in the areas of health, education and employment; and fuel the escalating and critical incarceration and child removal rates of Aboriginal and Torres Strait Islanders.
The Special Rapporteur’s first recommendation was to endorse constitutional change via the Uluṟu Statement from the Heart, including through a constitutionally protected First Nations Voice and later, a Makarrata Commission.
The UNDRIP is a non-binding declaration of the General Assembly. It reflects international consensus on the rights of indigenous peoples. It is an aspirational framework that sits within the structures of the existing state (Article 46 of the UNDRIP). As the UNEMRIP explained in 2021, political participation, Free, Prior and Informed Consent (FPIC) and other rights in the Declaration ‘are indivisible, interdependent and grounded in the overarching right of self-determination.’
In this part, we will demonstrate how the Regional Dialogues that delivered the Uluṟu Statement, the First Nations Voice, and Makarrata represent intertwined assertions of the right to political participation and the broader claims to self-determination through autonomy and self-government. The First Nations dialogues remain a part of a trajectory of implementation as the UNDRIP does not envisage one single moment, act or development as constituting FPIC or the right to self-determination. This dialogue is ongoing.
Article 3 of the UNDRIP states that Indigenous peoples have the right to self-determination, and by virtue of that right ‘they freely determine their political status.’ The process that led to the Uluṟu Statement from the Heart provides an historical example of First Nations exercising this determination. As the first time that First Nations people had conducted their own set of consultations on the question of the intention, nature and form of constitutional recognition, the process also represents an historic exercise of Indigenous-led political participation and FPIC.
UNDRIP sets out a framework for Indigenous participation in decision-making and the standard of FPIC in the two key political participation provisions Articles 18 and 19:
Article 18 Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.
Article 19 States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
As we explain further below, the First Nations Voice to Parliament was expressly framed during the Dialogues as originating from Article 18 of the UNDRIP on the right to participate in decision-making. The most recent statement on this right in international law was by the UNEMRIP. The UNEMRIP explains the constitutional First Nations Voice as an important right to political participation in the following way:
The right of indigenous peoples to participate in decision-making is provided for separately in article 18 of the Declaration, a provision grounded in article 25 of the International Covenant on Civil and Political Rights, which guarantees every citizen’s right to “take part in the conduct of public affairs”. The Declaration adapts this general right to participation to the needs and circumstances of indigenous peoples by seeking to achieve two objectives: first, to correct de jure and de facto exclusion of indigenous peoples from public life or decision-making processes owing to many factors, including prejudiced views against them, a low level of education, difficulties in obtaining citizenship or identification documents and non-participation in electoral processes and political institutions; and, second, to revitalize and restore indigenous peoples’ own decisions-making and representative institutions that have either been disregarded or abolished. These institutions should be recognized, revitalized and given opportunities to participate in decision-making.
In the full submission, we highlight seven elements of the Regional Dialogues design and process to demonstrate how it was an exercise of First Nations’ right to determine their own political status, and an example of political participation under the UNDRIP, and an exercise of Free, Prior and Informed Consent. These elements were:
The establishment of the Referendum Council at the request of First Nations leaders.
The design of the process was by First Nations people through three national meetings and a trial dialogue.
First Nations selection of delegates to the Dialogues and the Convention.
Dialogues were led by local First Nations representatives.
Decision-making was informed with basic civics education and information on options.
Meeting records were reviewed and agreed by delegates.
Self-determined – not pre-determined – outcomes.
The First Nations Constitutional Convention also represents an important part of the self-determined nature of the process that delivered the Uluṟu Statement from the Heart. The Convention provided a forum that respected self-determined priorities which were deliberated and settled by delegates at the Regional Dialogues. It was a forum in which regional delegates were asked to endorse a national reform position that accorded with the priorities that had been set at the regional level.
This process was conducted through initial agreement on a set of Guiding Principles, against which the reform priorities must be addressed. As the Referendum Council Final Report (2017) explains, these Guiding Principles were distilled from the Regional Dialogues’ records of meetings, as well as historically underpinning declarations and calls for reform by First Nations. They also reflect international standards pertaining to Indigenous peoples’ rights and international human rights law. The Referendum Council Report sets out the principles as follows:
The principles governing the assessment by the Convention of reform proposals were that an option should only proceed if it:
Does not diminish Aboriginal sovereignty and Torres Strait Islander sovereignty.
Involves substantive, structural reform.
Advances self-determination and the standards established under the United Nations Declaration on the Rights of Indigenous Peoples.
Recognises the status and rights of First Nations.
Tells the truth of history.
Does not foreclose on future advancement.
Does not waste the opportunity of reform.
Provides a mechanism for First Nations agreement-making.
Has the support of First Nations.
Does not interfere with positive legal arrangements.
Guiding Principle 3 explicitly references the standards of the UNDRIP, but other Guiding Principles also engage directly with the UNDRIP, including the need for substantive, structural reform (Articles 3 and 37), recognition of the status and rights of First Nations (preamble to UNDRIP), telling the truth of history (Preambular paragraphs 3, 4, 8, 15 and 21; Articles 5, 15, 37 and 40), providing a mechanism for First Nations agreement-making (Article 37) and requiring the support of First Nations (Articles 3 and 19).
Each of the proposed constitutional reforms considered at the Dialogues was then assessed against the Guiding Principles. The Referendum Council Report explains those assessments in relation to the reforms of Voice, Treaty and Truth (pages 22-24).
The Uluṟu Statement calls for three reforms: Voice and Makarrata, comprised of agreement-making and truth telling. Each of these reforms is consistent with the objectives of the UNDRIP, in that they are structural mechanisms designed to support the self-determination of Indigenous peoples, and to mediate the relationship between Indigenous peoples and the State. The first reform, the constitutional establishment of a First Nations Voice, as we explain in this part, provides a forum for First Nations ongoing political participation under articles 18 and 19, and the provision of Free, Prior and Informed Consent (FPIC). The constitutional nature of this mechanism provides the groundwork for negotiation of broader self-determination rights, autonomy and self-government, including through Makarrata (agreement making and truth-telling).
Its constitutional status is a fundamental dimension of its ability to realise the rights in the UNDRIP. Without constitutional establishment, protection and status, the First Nations Voice is vulnerable to instability and future abolition and is likely to lack the necessary legal and political authority that is required to provide FPIC. As the UNEMRIP explained in 2021:
The constitutional recognition of Indigenous peoples provides legal authority for the realization of the right to self-determination. Failure to legally recognise indigenous peoples obviates that right.
The report recommends:
States should support the effective participation, political and otherwise, of indigenous peoples in the overall functioning of the State. That can be achieved through a constitutionally recognized indigenous role and through a duty to consult and cooperate with the indigenous peoples concerned.
In 2017, UN Special Rapporteur on the Rights of Indigenous Peoples (2014-2020), Victoria Tauli-Corpuz, urged the government and the Australian people to support the call for a constitutionally enshrined Voice:
With respect to the institutional and legal framework, the Special Rapporteur recommends that the Government:
(a) Place full political weight behind and act on the proposals put forth by the Referendum Council, including the establishment of a “First Nations Voice” in the Constitution and of a commission for treaty negotiation and truth-telling. Such measures would carry momentous significance to resetting the relationship with the First Peoples of Australia.
In calling for this reform, delegates sought political participation as recognised in Arts 18 and 19 UNDRIP before decisions are made about them and actions are taken against them. The most recent UN statement on what this means is set out below, highlighting that the obligation of the state to consult is not one single event, but it is ongoing:
States’ obligations to consult with indigenous peoples should consist of a qualitative process of dialogue and negotiation, with consent as the objective (see A/HRC/18/42, annex, para. 9). The Declaration does not envision a single moment or action but a process of dialogue and negotiation over the course of a project, from planning to implementation and follow-up. Use in the Declaration of the combined terms “consult and cooperate” denotes a right of indigenous peoples to influence the outcome of decision-making processes affecting them, not a mere right to be involved in such processes or merely to have their views heard (see A/HRC/18/42). It also suggests the possibility for indigenous peoples to make a different proposal or suggest a different model, as an alternative to the one proposed by the Government or other actor.
Each of the conditions for political participation under the UNDRIP has important repercussions for the design and resourcing of the Voice. Based on the requirements, in the submission, the ILC drew the Committee’s attention to the need for the following:
(a) The Voice’s membership must be legitimate and authoritative within First Nations communities, drawn from self-determined processes. It must have a structure that represents and reflects local communities in their diversity, giving those a voice who haven’t had a voice in the past. It must have cultural legitimacy, in that it must be selected by Aboriginal and Torres Strait Islander peoples themselves in accordance with their own local practices, protocols and expectations. Cultural authority is integral to the consent being able to be provided. This is key to the Voice being an exercise of the right under Article 3 of the UNDRIP, of a ‘freely determined political status’ within the State.
(b) The scope of the Voice’s participation cannot be limited by the Parliament or the Executive. In this respect, the ILC have argued that the primary function of the Voice should extend to all matters it deems relevant to Aboriginal and Torres Strait Islander Peoples.
(c) The Voice must have a clear status and power vis-à-vis other arms of government, and be structurally independent of government. Its constitutional status should be clearly separated from the other branches of government, through the creation of a new, separate chapter. This would accord it constitutional status to speak to the other branches of government, which are each given their own separate constitutional chapter. It must be independent from the government so that it can present accurately and robustly the views of the Aboriginal and Torres Strait Islander peoples that it represents. This will be connected to (d) in relation to independent funding.
(d) The Voice must have appropriate levels of resourcing and support. Political participation, and ‘free’, ‘prior’, and ‘informed’ each have resourcing implications, and cannot be realised without a structure that is designed with sufficient resourcing at its disposal.
The Uluṟu Statement from the Heart acknowledges the entangled relationship between the existence of First Nations and Australia’s nationhood:
“With substantive constitutional change and structural reform, we believe (our) ancient sovereignty can shine through as a fuller expression of Australia’s nationhood.”
The Uluṟu Statement is also clear about First Nations sovereignty, which “has never been extinguished” or ceded, whilst explaining the existence of Indigenous nationhood:
“Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent lands and possessed it under our own laws and customs.”
The Uluṟu Statement from the Heart is an invitation to the Australian people to not only reset their social and political relationship with the Aboriginal and Torres Strait Islander population (Treaty), but for Australian Governments to re-establish their legal and political relationships with the multitude and diversity of Indigenous Nations (treaties). As Janine Gertz writes, the authority of an Indigenous Nation to decide important local level matters such as cultural identity and membership or to design local level social, cultural, and economic policy and programs for the Nation could be delegated and assigned through negotiated treaty arrangements.
Strengthened by a constitutionally enshrined First Nations Voice, Makarrata through agreement making is an opportunity not only for the sovereignty of Indigenous Nations to be recognised by the Australian people and its governments but for Indigenous Nations to re-build their own capacity for effective and capable self-government. Treaties are the mechanism to facilitate and achieve the social, cultural, economic, and political development goals according to the own customs and procedures of Indigenous Nations as per UNDRIP Articles 3, 9 and 34. Along with Article 3, the right to self-determination, Article 9 articulates the right of Indigenous peoples to be members of an Indigenous Nation, and Article 34 promotes the right of Indigenous peoples to develop and maintain their own institutional structures in accordance with their customs, spirituality, traditions, procedures, practices and juridical systems.
This Indigenous nation-building approach via Makarrata involves a shift in the self-determination mindset of First Nations peoples and Australian governments however, and rather than looking to Australian governments to design and implement programs of Indigenous self-determination, the policy design emphasis becomes more about how can First Nations people exercise their own capacity for self-determination. This is particularly important within the context of Health and Wellbeing, as the research shows that Indigenous Nation-Building “mitigates the effects of settler-colonialism on Aboriginal and Torres Strait Islander communities and individuals thereby improving health and well-being” indicators.
As we have outlined earlier within this submission the articles and principles within UNDRIP provide an important framework for Aboriginal and Torres Strait Islander political dialogue and advocacy with the state. The right to self-determination and the recognition, observance, and enforcement of treaties, agreements, and other constructive arrangements, are affirmed in UNDRIP Articles 3 and 37 (the right to negotiate treaties), and when read in conjunction with preambular paragraphs 14, 15 and 24, the UNDRIP underscores the importance of partnerships between Indigenous Peoples and states based on mutual consent and good faith.
UNDRIP Article 27 addresses Indigenous Peoples’ right to participate in a fair, independent, impartial, open, and transparent process; Article 28 speaks to the right to compensation and redress; and Article 40 conveys the right to fair procedures for the resolution of conflicts and disputes. These articles provide a framework for states implementing Article 37 (the right to negotiate treaties) in full partnership with Indigenous Peoples. This includes the processes that can help resolve conflicts or disputes about the violations of treaty rights during negotiations and implementation.
The UNDRIP principles of self-determination; participation in decision-making that is supported by free, prior, and informed consent and good faith; respect for and protection of culture; and equality and non-discrimination, also provide guidance on the practical implementation of UNDRIP Article 37 which outlines the right to negotiate treaties. The establishment of a Makarrata Commission as called for within the Uluṟu Statement will be integral to the processes of monitoring and facilitating fair and just treaty negotiations across the continent, ensuring that each treaty is negotiated through the guiding articles and principles of the UNDRIP — but most importantly through the principle of Free, Prior and Informed Consent.
In the Regional Dialogues, truth-telling emerged as a Guiding Principle (Principle 5 – Tells the Truth of History), and as one of the three structural reforms that was included in the Uluṟu Statement.
The UNDRIP recognises in its preamble the importance of understanding historic injustices caused by colonial dispossession to inform the exercise of the rights in the Declaration, and the importance of history in understanding the UNDRIP rights. Article 15 articulates this importance in the right to culture, and the States’ responsibility to combat prejudice and eliminate discrimination and to promote tolerance, understanding and good relations among indigenous peoples and all other segments of society. In addition to these explicit acknowledgements of the foundational role of truth about historical injustices, and Indigenous history, the right to self-determination in UNDRIP gives to First Nations people the right to control their history.
The call in the Uluṟu Statement for truth telling reflects the need for First Nations control of the truth-telling process, including what is told, how it is told, and when it is told.
The reform emerged independently from the dialogue process, in that it was not a pre-set reform option that had been set by the government or Referendum Council. Rather, it emerged powerfully, organically and independently from each Dialogue. Delegates were consistent in their belief that a truth-telling of injustices, resistance, resilience, achievement and culture, was part of reforming the Australian nation. In this way, as Professors Gabrielle Appleby and Megan Davis have written, the truth-telling that is being sought is both an historical exercise, but also part of the contemporary political transition in Australia. In the Uluṟu Statement, truth-telling is part of the culmination of the reform agenda, to occur after the First Nations Voice has been constitutionally enshrined to guarantee political participation through FPIC.
The political participation that is provided by the Voice makes a self-determined exercise of truth-telling possible. The Uluṟu Statement explains this is to be overseen by an independent Makarrata Commission. The intention is that the Commission, its membership, its terms of reference and its procedure, will be negotiated between the Voice and the State. This demonstrates the importance of truth-telling being shared in nature. Importantly, it is not to be controlled by the State. A truth-telling process that occurs before the work of developing and ensuring robust political participation and FPIC risks the fate of many Australian attempts at truth-telling in the past, including State commissions of inquiry such as the Royal Commission into Aboriginal deaths in custody, recognising the damage and ongoing intergenerational trauma caused by dispossession, violence and assimilation policies; and the Human Rights and Equal Opportunity Commission’s Bringing them Home Report into the stolen generations, which included testimony from individuals who had been affected by the government’s policies. As historian Kate Fullagar has written, ‘it’s not that we lack truths about the Indigenous presence in Australian history’, but that state-led processes can be ‘wrenchingly slow or simply useless.’ The Uluṟu Statement from the Heart, in seeking a Makarrata Commission in which First Nations people themselves negotiate the rules of the game, is seeking to change this.
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Gabrielle Appleby, Megan Davis, Janine Gertz, Eddie Synot & Sophie Rigney are members and associates of the Indigenous Law Centre (ILC).
