UNDRIP in Australia

Australia undoubtedly regards itself as a high-functioning democracy and yet it has shown itself unwilling to properly deliberate on its obligations under the UNDRIP, particularly the obligation to respect the right of Indigenous peoples to self-determination.

Limited progress

On 3 April 2009, the Australian Federal Government indicated its support for UNDRIP, despite being one of the four nations that initially refused to endorse it and that in fact co-led efforts to weaken the original Declaration. Although Australia’s support for the Declaration does not create new rights, it provides a comprehensive framework for action to influence laws, policies and program reforms in line with its commitment to upholding and respecting the individual and collective rights of Aboriginal and Torres Strait Islander peoples.

In 2017, Australia put forward a successful bid for a seat on the UN Human Rights Council, with a statement of the Australian Government to pledge to “support the Declaration on the Rights of Indigenous Peoples in both word and deed, including the promotion of the declaration’s principles through national engagement”, which would “draw connections between national activity and the principles of the declaration”.

Nevertheless, Australia has been criticised for the subsequent lack of any changes in policies and actions relating to UNDRIP. In 2017, the UN Special Rapporteur on the Rights of Indigenous Peoples reported that:

It is woefully inadequate that, despite having enjoyed over two decades of economic growth, Australia has not been able to improve the social disadvantage of its Indigenous population. The existing measures are clearly insufficient as evidenced by the lack of progress in achieving the ‘Close the Gap’ targets.

Additionally, the Special Rapporteur noted that the extraordinarily high rate of incarceration of Aboriginal and Torres Strait Islanders, including women and children, is a major human rights concern.

The 2021 Australian Human Rights Report highlighted the lack of steps taken by the Australian Government to implement UNDRIP, including not having audited existing laws, policies and practice for compliance with UNDRIP, and not having negotiated a National Action Plan with Aboriginal and Torres Strait Islander peoples aiming to implement UNDRIP.

UNDRIP & Voice,
Treaty, Truth

In May 2017, the Uluru Statement from the Heart was issued at the First Nations National Constitutional Convention. This was a major milestone in the movement for Voice, Treaty and Truth, aiming for the establishment of a representative First Nations Voice enshrined in the Constitution, and a Makarrata Commission to ‘supervise a process of agreement-making between governments and First Nations and truth-telling about our history’. The path towards Voice, Treaty and Truth that the Uluru Statement lays out complements and in many ways embodies the principles embedded in UNDRIP, in particular the right to self-determination and the principle of free, prior and informed consent.

Since the Uluru Statement was issued, five of Australia’s eight states and territories have committed to treaty processes. Queensland and Victoria, in particular, have both explicitly cited UNDRIP and its principle of free, prior and informed consent as a guiding principle for their engagement and collaboration with First Nations peoples on truth-telling and treaty negotiations. Still, treaty-making and truth-telling processes underscored by UNDRIP remain absent at a national level. For more on the role of UNDRIP in the Victorian treaty process, read this blog from the First Peoples Assembly.

In mid 2024, the Albanese Government announced that the Australian Law Reform Commission would undertake an inquiry into the Native Title Act 1993 (Cth)
and its future acts regime, providing the chance to update the future acts framework to give expression to Australia’s obligations under UNDRIP by including a right to self determination and the associated right to free prior and informed consent on matters affecting land.

Without adherence to the rights recognised in the UNDRIP, any pathway to treaty and truth risks imposing top-down benevolent reforms on First Nations people and failing to properly engage First Nations people to secure their free, prior, and informed consent and achieve their self-determination.

Castan Centre for Human Rights Law

Inquiry into the
application of UNDRIP
in Australia

In 2022, the Senate referred the United Nations Declaration on the Rights of Indigenous Peoples to the Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs for inquiry and report, focusing on the application of UNDRIP in Australia.

Together with other discussions in important areas such as native title and cultural heritage, the many submissions to the Inquiry and its November 2023 final report shed light on the possibilities and challenges of aligning national policies with the principles outlined in UNDRIP, as well as the urgent need to carry out this work. Let’s take a look at some of the key findings.

• In Australia, there is currently no single or centralised mechanism for implementing UNDRIP. However, the Inquiry found there are four broad ways in which UNDRIP is currently being implemented in Australia:

1. application of UNDRIP in relation to jurisdiction’s human rights mechanisms;
2. implementation of the Uluru Statement from the Heart;
3. commitments to partnership-based approaches with First Nations peoples to develop policy’; and
4. industry or sector specific approaches to applying UNDRIP.

• From the Government’s perspective, their efforts to give practical effect to UNDRIP include: the National Agreement on Closing the Gap and the Empowered Communities program, increased shared decision-making, support for First Nations businesses in international trade, the appointment of an Ambassador for First Nations People, and the National Justice Reinvestment Program;
• Australia often cites ‘federation complexity’ as a hindrance to developing a more unified, co-ordinated and robust implementation of UNDRIP across Commonwealth, states and territories. The Committee highlighted the importance of coordination among jurisdictions and encouraged the Australian Government to learn from and support efforts at the state and territory levels;
• Australian governments have enacted policies and legislation in direct contravention of UNDRIP, revealing a general lack of protection for the rights of Aboriginal and Torres Strait Islander peoples across all domestic jurisdictions;
• UNDRIP appears to have a growing salience in how sectors – particularly among industry and NGOs – understand and articulate their responsibilities to Aboriginal and Torres Strait Islander communities;
• There is a growing moral and political force for UNDRIP’s principles in the context of climate change, particularly self-determination, participation in decision-making, and maintaining and strengthening cultural and spiritual relationships with traditional lands, territories, waters and resources.

In its comments, the Committee noted that the efforts of states and territories to implement UNDRIP principles through their respective human rights frameworks and the implementation of the Uluru Statement from the Heart are valuable examples that could inform implementation of UNDRIP at the federal level. It further urged the Australian Government to monitor and support these processes.

Read ANTAR’s Submission to the Inquiry into the Application of UNDRIP in Australia here.

In the absence of entrenched rights and protections in Australia, international standards, whether binding or non-binding, have had persuasive authority in the Australian legal and political system. It is true that there have been many losses, but the UNDRIP has played and will continue to play an authoritative role in the lives of Indigenous peoples globally, whether binding or not.