International law can provide a way forward

Gunnai Gunditjmara and Djab Wurrung woman and independent Senator Lydia Thorpe puts forward her view (The Guardian 4 December 2023), on how Australia should move forward after the Voice referendum debacle. She talks about the implementation of all parts of the Uluru Statement from the Heart, which includes truth telling and working towards Treaty. Australia should also implement the UN Declaration on the Rights of Indigenous Peoples, she adds.

Following the failed voice to parliament referendum, the whole country is wondering what’s next. After all the hype leading up to 14 October, the Albanese government has gone completely quiet on how it intends to progress First Nations justice. It has not provided a plan B when people are yearning for one.

There is clearly momentum to progress justice for our people and it is so important not to lose this. We need strong leadership in progressing from here, but we cannot expect this leadership from a government that still mourns the failure of a reform that I think would have had little impact on the lives of First Peoples.

It is our people that provide this leadership – and always have. This leadership is grounded in care, community, and custodianship, and on a rights-based approach.

Photo by David Gray/Reuters: First Nations flag carried where the Aboriginal Tent embassy was founded in 1972 and remains to this day

A rights-based approach means that all forms of discrimination in the realisation of rights must be prohibited, prevented, and eliminated. It means upholding our sovereign rights to nurture each other and care for the lands, waters, and skies of this continent.

Our people’s rights have been violated since colonisation and continue to be violated every day we live in this country. As a nation, we need the truth of this history to be told as a basis for healing and moving forward. From there, treaty-making with the First Peoples of these lands can set a framework for harmonious coexistence based on the respect of the human rights of all people. Treaty can bring us peace and allow us all to thrive.

Our people have been marching for truth and treaty for decades and it is now up to the federal government to fulfil its commitment to implement the other elements of the Uluru statement and progress truth and treaty. We cannot afford to delay them any further.

But there is another, logical and immensely important next step for First Peoples’ rights in this country, and one that is overwhelmingly supported by our people: the implementation of the UN Declaration on the Rights of Indigenous Peoples.

The UNDRIP is a human rights instrument developed by First Peoples across the globe. It does not create new rights specifically for First Peoples, rather embodies many human rights principles already protected under international customary and treaty law within an Indigenous context, setting the minimum standard of human rights for First Peoples.

Even though these are only minimum standards, successive Australian governments have been scared to progress them. When the declaration was first adopted by the UN in 2007, Australia was one of only four countries to actually oppose it. When it finally endorsed the declaration two years later, it was clear there was no intention to actually implement it.

It has been nothing but lack of political will in this country stopping progress on adherence to the principles and rights outlined in the declaration. Core principles of the UNDRIP are the right to self-determination; to free, prior, and informed consent; and the right to maintain and practise culture.

As with other human rights, we see the rights of First Peoples outlined in the declaration, and the principles it is founded upon, violated every day in this country. The ‘commitment’ the Australian government made to the UNDRIP by endorsing it all these years ago means nothing as it hasn’t been acted upon by any level of government.

As declarations are not internationally legally binding documents, there are no consequences for the government for breaching the UNDRIP.

Our Australian morning briefing breaks down the key stories of the day, telling you what’s happening and why it matters.

This is why it is critical to enshrine the declaration into Australian law. In March last year, I introduced a bill to achieve exactly that. It does not create an immediate hard onus on the government, nor liability – it simply requires the government to audit its laws for compliance with the UNDRIP, to develop a national action plan to implement the UNDRIP in its laws, policies, and practices, and to report regularly on its progress.

This is a straightforward approach that mirrors what Canada has done, with great outcomes for communities so far. In the Senate inquiry on this matter, we heard that nothing has progressed Canada’s adherence to the UNDRIP as much as making it a law. Other approaches taken by other countries have failed to achieve the same progress.

Legislating the UNDRIP means we can hold the government accountable to what it promised, on a tangible timeline. It can provide us with some certainty that our rights are being considered and progressed not just by this but future governments, no matter their political leaning.

We need to refer to international law out of desperation as governments have not just let us down, they have intentionally violated our rights to their own benefit for almost two and a half centuries. Lip service to how much we matter is not going to cut it anymore. We will only accept action. If the Labor government is really as committed to First Nations justice and to self-determination as they say they are, then here is the obvious next step, served to them on a platter. My bill will be debated this week. If it comes to a vote, this will test the government’s true intentions. Watch this space.