The road ahead for Indigenous Rights

Words by Ben (he/him) 22 QLD

In the wake of the October referendum on an Indigenous Voice to Parliament, the potential for policy measures aimed at improving First Nations’ rights and welfare to garner popular support has dwindled. So too has endorsement by politicians and their parties, who have been quick to abandon such policies altogether.

One week after nearly 70 per cent of Queenslanders voted against the Voice to Parliament, Queensland’s Liberal opposition leader David Crisifulli withdrew his party’s support for the Labor government’s proposed Path to Treaty. This was despite voting in favour of establishing a First Nations Treaty Institute and truth-telling and healing inquiry five months prior.

Numerous reports and parliamentary inquiries have pointed to the absence of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) from Australian laws as a major reason why Indigenous peoples and their cultural heritage are insufficiently protected by the law. As the Indigenous rights movement looks for a new way forward, it is critical to emphasise the areas in which governments have failed to meet their human rights obligations in the past, particularly when it comes to ensuring a level playing field for First Nations peoples to advocate for their rights to traditional land.

At the beginning of this year, the National Archives released cabinet papers from 2003 that detailed the Howard government’s rejection of a draft of the UN Declaration. It found that the government had worked with Canada to alter the draft Declaration to mitigate the threat that self-determination posed to the territorial and political integrity of the Commonwealth governments. Negotiations sought to water down the draft by adding lines to ensure self-determination remained dependent on “agreement with government.”

It should therefore come as no surprise that both governments considered First Nations’ consultation throughout the alternative drafting process to be “premature.” Cabinet papers also revealed that the Aboriginal and Torres Strait Islander Commission (ATSIC) – which the Howard government would abolish in 2005 – had not been advised of the negotiations. The Howard government ultimately rejected the UNDRIP in 2007 along with Canada, New Zealand, and the United States. It was not until 2009 that the Rudd government officially adopted the Declaration, yet to this day Indigenous communities throughout Australia lack the necessary legal protection to influence how their traditional lands are used.

A 2021 report from RMIT University investigating resource extraction projects in the Beetaloo Basin (NT), the McArthur River mine (NT) and the Carmichael coal mine (QLD) found an alarming pattern of free, prior informed consent being absent from negotiations with traditional owners. Additionally, a parliamentary inquiry into Rio Tinto’s destruction of the Juukan Gorge – a place of critical cultural importance to the Puutu Kunti Kurrama and Pinikura people – concluded that legislation to protect Indigenous cultural heritage was inadequate. Particularly alarming is the fact that, despite contradicting international obligations to human rights, these actions are permissible under Australian law.

In July last year, the UN Human Rights Committee determined that the Federal Court had violated the rights of the Wunna Nyiyaparli people, who sought to claim an area of land in the Pilbara, including three iron ore mines. The Wunna Nyiyaparli people first brought the claim to the Federal Court in 2012, but soon could not afford legal representation. Their rights were violated in numerous ways: they did not receive sufficient guidance on the laws and facts associated with the case, were insufficiently consulted about various aspects of the court proceedings, and were subjected to unjustified differential treatment regarding their rights to traditional lands.

The Wunna Nyiyaparli people’s inability to fully participate in and understand the court’s procedures led the UN Human Rights Committee to advise the Australian government to reconsider their native title claim. This was the first time that the UNHRC had made a ruling about a native title case in Australia. The Committee also ordered the Australian government to respond to its decision by February with proposed measures to address the violation of the International Covenant on Civil and Political Rights (ICCPR) – which is informed by the UNDRIP – and to compensate the Wunna Nyiyaparli people, review any mining concessions that have not been consented to by the traditional owners, and not to undertake any actions to cause further negative harm to them.

There is no evidence to suggest that the Government has addressed the violation, which is both disappointing and painfully consistent with Australia’s record of non-compliance with committee recommendations.

The pathway forward must ensure that Indigenous peoples are not exploited for political power, only to later be abandoned on the whims of political parties looking to garner popular support. Governments must instead make a genuine commitment to improving Indigenous welfare by fulfilling an obligation to enshrine human rights, which we have ignored for too long.

 

Illustration by Aileen. You can find more of her work on Instagram @aileenngstudio

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