Australia: Thorpe delivers Bill to establish rights of indigenous peoples in law

Adopted on 13 September 2007, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is a comprehensive document that sets out the universal rights of First Peoples globally, including their rights to self-determination and to free, prior and informed consent.

A response to the ravages of the 500-year-old colonial project, the UNDRIP saw 144 nations of the UN General Assembly vote in favour of its adoption, while only four voted against it, those being Australia, Canada, New Zealand and the United States.

Then Australian PM John Howard said the decision to vote against the UNDRIP “wasn't difficult at all” and he further suggested in a somewhat incendiary manner that his settler colonial government didn't “support the notion that you should have customary law taking priority over the general law”.

Liberal Senator Marise Payne said in parliament just days before the UN voted to adopt the UNDRIP that such an important matter shouldn't be rushed into.

However, since then, the percentage of the nation's prison population made up of First Nations adults has jumped from 24 to 31 percent, while Indigenous people only account for less than 3 percent of the overall populace of this continent.

As Australian Greens Senator Lidia Thorpe told the chamber on 29 March, it's now 15 years on and still nothing has been done about the UNDRIP, so later that day, the Gunnai Gunditjmara and Djab Wurrung woman introduced a piece of legislation into parliament to fix that.

Self-determination

“All levels of government have been making decisions about us – without us – for far too long,” Thorpe told Sydney Criminal Lawyers. “Implementing the UNDRIP will put First Nations people back in the driver's seat, so we can control our own destiny.”

Introduced on 29 March, the United Nations Declaration on the Rights of Indigenous Peoples Bill 2022 provides a framework and an ongoing process that aims to see the provisions of the UNDRIP enshrined in Australian law.

“This bill is the first step towards implementing the UNDRIP into our laws, policies and practice,” the Senator continued. “It requires the government to develop a fully funded national action plan to implement the UNDRIP and to audit existing laws, so they are compliant with the UNDRIP.”

Despite the Howard government's refusal to uphold the rights of Aboriginal and Torres Strait Islander peoples, the Rudd government did endorse the UNDRIP on 3 April 2009, and made a verbal commitment to take action in relation to it. But nothing has been done in this regard since then.

“The Liberal and Labor parties have failed to implement the UNDRIP because protecting human, land and sea rights for First Nations people has never been a priority for them,” Thorpe made clear.

The guts of the bill

Proposed section 8 of the Thorpe bill requires the prime minister to create an action plan to implement the objectives of the declaration, in consultation with First Nations people and the Australian Human Rights Commission.

The UNDRIP national action plan must be tabled in parliament within two years of the commencement of the process. And the consultation and cooperation process to produce the document must entail the free, prior and informed consent of First Nations peoples.

The plan must address injustices, combat prejudice, eliminate violence, racism and discrimination, including systemic racism, against First Nations peoples. And further it must foster a climate of mutual respect, promote rights education, and provide avenues of recourse to remedy issues.

Following the release and implementation of the action plan, the PM must provide an annual report on its progress at the end of each financial year. From there, the Australian Human Rights Commission and the Productivity Commission will make an assessment on the progress report.

“This instrument is a mechanism to enshrine our rights in domestic law,” Thorpe underscored. “This is well overdue, and it took a grassroots Blak Senator to bring this to the table in 2022.”

“The dignity and diversity of their cultures”

The UNDRIP is an important document, but also tragic in what it implies about the non-Indigenous colonisers of the globe.

Its first article stipulates that Indigenous people should be free to enjoy all the rights set out in the major international instruments, which one might expect as a given.

The declaration asserts First Peoples' right to self-determination, autonomy, self-government and the means for financing this.

Further, it stipulates that Indigenous people have a right to maintain their own institutions, whilst retaining the choice of whether to fully participate in the institutions of the state.

States are required to create mechanisms to prevent “forced assimilation and the destruction of culture”, whilst Indigenous children should not be forcibly removed from their families, and nor should First Nations people be made to relocate from their lands.

“No relocation shall take place without the free, prior and informed consent of the Indigenous peoples concerned,” the document reads. “Indigenous peoples have the right to practise and revitalize their cultural traditions and customs.”

These are just some of points set out in the UNDRIP, which is not only set to play an increasing role in the affairs of this continent, but most likely worldwide, as with the escalating global crisis, it's Indigenous ways of being that hold the key to prevent further destruction.

Enshrining into local law

On the same day she introduced her bill, Thorpe and Greens Senator Dorinda Cox successfully passed a motion to establish a Legal and Constitutional Affairs References Committee inquiry that will investigate how the UNDRIP will be locally implemented.

Delivering its report on 15 September, the inquiry will consider key Australian legislation that will be affected by the implementation of the UNDRIP principles, as well as current and historical matters that have affected the upholding of the rights of the First Nations people of this continent.

“The UNDRIP states that First Nations people are equal to all other peoples, while respecting our right to be different,” Senator Thorpe said in conclusion. “It affirms that any doctrine, policy or practice based on racial superiority is scientifically false and legally invalid.”

“The UNDRIP is about bringing people together, to build communities that are free from discrimination.”

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