By Stephen de Tarczynski
MELBOURNE, Nov 1 2007 (IPS)

Australia’s opposition to the United Nations General Assembly (UNGA) declaration on the rights of indigenous peoples, passed in September, is in step with the government’s approach to domestic policies under Prime Minister John Howard.

When UNGA adopted the declaration on indigenous rights by an overwhelming vote Australia was one of just four countries – the others being the United States, Canada and New Zealand – to vote against it.

Megan Davis, director of the Indigenous Law Centre at the University of New South Wales, says she was not surprised by Australia’s opposition to the declaration which was the culmination of more than 20 years of negotiations.

“I think it’s pretty consistent with the Howard government’s approach to indigenous rights and human rights in general during his period in office,” Davis, who attended the declaration working groups from 1999 to 2004, told IPS.

The non-binding declaration – which calls for the maintenance and strengthening of the cultural identities of the world’s 370 million indigenous people; acknowledges their right to pursue development within the framework of their own needs; promotes their full participation in all matters in which they are concerned; and prohibits discrimination against indigenous peoples – was supported by 143 member states, with eleven abstentions and 34 absent.

Australia’s ambassador to the U.N. Robert Hill said while Australia had wanted a meaningful declaration that could be universally accepted and observed, the adopted one “failed to reach that high standard.”

The spokesperson says the declaration gives “a particular group the right to veto decisions of a democratically elected government” and that it provides “rights over land that could override legitimate legal interests in land held by others and open up the question of compensation.”

The declaration also “places customary law in a superior position to national law,” says the spokesperson, a concern previously articulated by the Prime Minister.

Megan Davis says the declaration is important for indigenous Australians, despite the government’s opposition to it. She argues that even before it was adopted, “the draft declaration was used extensively in Australia.”

“I think it will make a world of difference because what it does now, it gives people a piece of paper to be able to look at and frame the way in which they talk to local, state and federal government departments about their rights and issues,” says Davis.

Davis argues that as aboriginal people helped draft the declaration, the principles upon which it is based – consultation being one of the major ones – are really important guides for “democracies like Australia that seem to be bewildered as to how to improve the problems of disadvantage in aboriginal communities.”

But while she extols the virtues of the declaration, Davis says the government’s argument that it enables customary law to override national law is incorrect.

“It’s impossible. They’ve admitted that it’s a non-binding declaration,” says Davis, who says the government is deliberately misreading the text.

“I think it was deliberately intended to make the passing of the declaration controversial. I think that the government lawyers would know full well that this declaration in no way elevates customary law above national law,” Davis argues.

The Sydney-based academic says an Australian “yes” vote for the declaration would have been at odds with the current government’s attitude towards indigenous issues.

“Given the Howard government’s entire period in office has been about the winding back and diminishing of substantive indigenous rights in law, I wouldn’t expect that they’d support anything that would bolster aboriginal people’s advocacy for greater legal recognition in the Australian legal system,” says Davis.

Supporting the declaration “would be really inconsistent with his (Howard’s) approach because he’s done nothing but diminish any rights that we have,” says Davis.

She cites examples of the Howard government’s approach to indigenous people – including the 1998 amendment to the Native Title Act which placed restrictions on claims to land for indigenous Australians; the 2005 abolition of the Aboriginal and Torres Strait Islander Commission (ATSIC), an elected body representing indigenous people; and the present intervention in the Northern Territory, a controversial federal incursion into aboriginal communities ostensibly to protect children from sexual abuse – that demonstrate consistency.

“It’s been this constant winding back of rights and it’s rights that we’re talking about,” says Davis.

Lynn Austin, chairperson of Stolen Generations Victoria, a support group for indigenous Australians who were removed from their families and communities, agrees that the government’s decision to vote against the declaration is consistent with other examples of its approach to indigenous issues.

Austin says it is no surprise that Australia voted against the declaration. “If they signed it, people would be looking at things like native title and land, and a number of other issues like social justice for our people.”

“It’s like they want us living in this sort of environment, without rights and for us to be dictated to the whole time,” Austin told IPS.

She argues that Howard’s plan to hold a referendum within 18 months – if he is reelected in this month’s federal election – on whether to include a statement on recognising indigenous Australians as the nation’s first Australians in the preamble to the constitution, is a political stunt.

Davis argues that Howard’s pledge is symbolic and therefore remains in step with the government’s opposition to the declaration on indigenous rights.

“I think acknowledging us in the preamble is purely symbolic because the preamble has no legal effect,” she says.

“And I think that is totally consistent with signing on to the declaration because doing the preamble on its own, Howard still is not recognising that we have rights as indigenous people,” says Davis.

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