Treaty making and the UN Declaration on the Rights of Indigenous Peoples: lessons from emerging negotiations in Australia

ABSTRACT

No treaties between Aboriginal and Torres Strait Islander peoples and the Australian state have ever been recognised. In recent months, however, several states and territories have committed to entering treaty negotiations with the First Nations whose lands they claim. Negotiations are in their preliminary stages and it remains to be seen what eventuates, but these developments are promising. Nonetheless, many challenges exist. In this paper, I explore the initial developments in Victoria, and assess whether and how the United Nations Declaration on the Rights of Indigenous People has influenced the debate thus far. This analysis reveals lessons for all Indigenous peoples seeking to enter treaty negotiations with states across the globe.

KEYWORDS:

• Treaty
• UNDRIP
• Indigenous peoples
• Australia
• Aboriginal and Torres Strait Islander people

Acknowledgements

Thanks to Stephen Young, Gabrielle Appleby, participants at the 10th Anniversary of the UN Declaration on the Rights of Indigenous Peoples: Conference to Review Progress and Challenges, University of London, 20 October 2017, and the anonymous reviewer for helpful comments on earlier drafts.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Harry Hobbs is a Lecturer in the Faculty of Law, University of Technology Sydney, and a PhD Candidate in the Faculty of Law, University of New South Wales.

ORCID

Harry Hobbs http://orcid.org/0000-0001-9903-6908

Notes

1. Claire Charters, ‘Indigenous Peoples and International Law and Policy’, in Indigenous Peoples and the Law, eds. Benjamin J. Richardson, Shin Imai and Kent McNeil (Hart Publishing, 2009), 161, 175.

2. James Anaya and Siegfried Wiessner, ‘The UN Declaration on the Rights of Indigenous Peoples: Towards Re-Empowerment’, Jurist, October 3, 2007. http://www.jurist.org/forum/2007/10/un-declaration-on-rights-of-indigenous.php.

3. Stephen Allen and Alexandra Xanthaki, ‘Introduction’, in Reflections on the UN Declaration on the Rights of Indigenous Peoples, eds. Stephen Allen and Alexandra Xanthaki (Hart, 2011), 1, 7.

4. Expert Mechanism on the Rights of Indigenous Peoples, Ten Years of the Implementation of the United Nations Declaration on the Rights of Indigenous Peoples: Good Practices and Lessons Learned—2007–2017, UN Doc A/HRC/EMRIP/2017/CRP.2 (10–14 July 2017) 3, [4].

5. Kirsty Gover, ‘Settler-State Political Theory, “CANZUS” and the UN Declaration on the Rights of Indigenous Peoples’, European Journal of International Law 26 (2015): 345.

6. ‘Australia Refuses to Sign UN Declaration on Indigenous Rights’, ABC Lateline, September 14, 2007.

7. Jenny Macklin, ‘Statement on the United Nations Declaration on the Rights of Indigenous Peoples’ (Official Statement, 3 April 2009). Of course, from a purely doctrinal perspective, issuing a qualification to a General Assembly Declaration is unnecessary as they are formally non-binding. As such, it is likely that the qualification was intended to serve a rhetorical purpose.

8. Mandy Doherty and Jenny Bedford, ‘Implementation of the Declaration of the Rights of Indigenous Peoples’ (speech on behalf of the Australian government and Australian human rights commission to the permanent forum on indigenous issues, New York, May 22, 2013).

9. Uluru Statement from the Heart, cited in Referendum Council, Final Report of the Referendum Council (June 2017) i.

10. See generally George Williams and Megan Davis, Everything You Need to Know about the Referendum to Recognise Indigenous Australians (NewSouth Publishing, 2015).

11. For more information on these developments see Harry Hobbs and George Williams, ‘Treaty Making in the Australian Federation’, Melbourne University Law Review (forthcoming).

12. Megan Davis, ‘Indigenous Struggles in Standard-Setting: The United Nations Declaration on the Rights of Indigenous Peoples’, Melbourne Journal of International Law 9 (2008): 439, 465.

13. Carolyn Bennett, ‘Speaking Notes’ (address delivered to the UN permanent forum on indigenous issues, 16th Session, New York, May 10, 2016). Speech available at: ‘Fully Adopting UNDRIP: Minister Bennett's Speech at the United Nations’, Northern Public Affairs, May 11, 2016 http://www.northernpublicaffairs.ca/index/fully-adopting-undrip-minister-bennetts-speech/.

14. Megan Davis, ‘The United Nations Declaration on the Rights of Indigenous Peoples’, Indigenous Law Bulletin 6, no. 30 (2007): 6, 6.

15. Willem van Genugten and Federico Lenzerini, ‘Legal Implementation and International Cooperation and Assistance: Articles 37–42’, in The UN Declaration on the Rights of Indigenous Peoples: A Commentary, eds. Jessie Hohmann and Marc Weller (Oxford University Press, 2018), 539, 572.

16. Harry Hobbs and George Williams, ‘The Noongar Settlement: Australia's First Treaty’, Sydney Law Review 40 (2018): 1. See further Michael Mansell, Treaty and Statehood: Aboriginal Self-Determination (Federation Press, 2016) 99–102; Sean Brennan et al., Treaty (Federation Press, 2005) 3–11.

17. Michael Keating, Plurinational Democracy: Stateless Nations in a Post-Sovereignty Era (Oxford University Press, 2001), 27.

18. UNDRIP art 6.

19. UNDRIP art 9. See also UNDRIP art 33.

20. UNDRIP art 30(2).

21. UNDRIP arts 15(2), 17(2), 19, 32(2), 36(2), 38.

22. Permanent Forum on Indigenous Issues, ‘Report of the International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples’, UN Doc E/C.19/2005/3 (New York, January 17–19, 2005), 12 [46]–[47].

23. UNDRIP art 27.

24. James Anaya and Sergio Puig, ‘Mitigating State Sovereignty: The Duty to Consult with Indigenous Peoples’, University of Toronto Law Journal 67 (2017): 435. See also Patrick Macklem, The Sovereignty of Human Rights (Oxford University Press, 2015).

25. UN Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights Working Group on Indigenous Populations, Preliminary Working Paper on the Principle of Free, Prior and Informed Consent of Indigenous Peoples, Submitted by Antoanella-Iulia Motoc and the Tebtebba Foundation, 22nd sess, Agenda Item 5, UN Doc E/CN.4/Sub.2/AC.4/2004/4 (8 July 2004) [13].

26. Michael Dodson, cited in Craig Scott, ‘Indigenous Self-Determination and Decolonisation of the International Imagination: A Plea’, Human Rights Quarterly 18 (1996): 814, 814. See also Brenda Gunn, ‘Self-Determination and Indigenous Women: Increasing Legitimacy through Inclusion’, Canadian Journal of Women and the Law 26 (2014): 241, 260.

27. Davis, ‘Indigenous Struggles in Standard-Setting’, 459.

28. Thomas Franck, ‘The Emerging Right to Democratic Governance’, American Journal of International Law 86 (1992): 46, 52.

29. Ibid.

30. See for e.g. (2011) 20(3) Griffith Law Review ‘Special Issue: The 2007 Declaration on the Rights of Indigenous Peoples: Indigenous Survival – Where to from Here?’

31. Irene Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law (Routledge, 2015) 2.

32. Megan Davis, ‘To Bind or not to Bind: The United Nations Declaration on the Rights of Indigenous Peoples Five Years On’, Australian International Law Journal 3 (2012): 17, 47.

33. Ted Moses, Cree Leader, cited in Ronald Niezen, The Origins of Indigenism: Human Rights and the Politics of Identity (University of California Press, 2003) 156.

34. Davis, ‘Indigenous Struggles in Standard-Setting’, 470.

35. Roderic Pitty and Shannara Smith, ‘The Indigenous Challenge to Westphalian Sovereignty’, Australian Journal of Political Science 46 (2011): 121, 128.

36. UNDRIP art 9.

37. UNDRIP art 5.

38. Clive Baldwin and Cynthia Morel, ‘Using the United Nations Declaration on the Rights of Indigenous Peoples in Litigation’, in Reflections on the UN Declaration on the Rights of Indigenous Peoples, eds. Stephen Allen and Alexandra Xanthaki Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart, 2011), 121, 123–4.

39. See for example Javaid Rehman, ‘Between the Devil and the Deep Blue Sea: Indigenous Peoples as Pawns in the US “War on Terror” and the Jihad of Osama Bin Laden’, in Reflections on the UN Declaration on the Rights of Indigenous Peoples, eds. Stephen Allen and Alexandra Xanthaki (Hart, 2011), 561. See also James Anaya, Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, including the Right to Development, UN Doc A/HRC/12/34 (July 15, 2009) 12–15 [38]–[42].

40. Commission on Human Rights, Report of the Eighteenth Session, UN ESCOR, 34th sess, Supp No 8,UN Doc E/CN.4/832/Rev.1 (March 19–April 14, 1962) 15 [105].

41. Mattias Åhrén, Indigenous Peoples’ Status in the International Legal System (Oxford University Press, 2016), 105.

42. Amy Maguire, ‘The UN Declaration on the Rights of Indigenous Peoples and Self-Determination in Australia: Using a Human Rights Approach to Promote Accountability’, New Zealand Yearbook of International Law 12 (2014): 105, 112.

43. See Julie Fenley, ‘The National Aboriginal Conference and the Makarrata: Sovereignty and Treaty Discussions, 1979–1981’, Australian Historical Studies 42 (2011): 372.

44. Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Two Hundred Years Later … (1981), Recommendation 1.

45. ‘Barunga Festival’, Land Rights News 2 (1988): 22–7.

46. Council for Aboriginal Reconciliation, Reconciliation: Australia's Challenge (Final Report of the Council for Aboriginal Reconciliation, 2000), 106, Recommendation 6; Hannah McGlade, ed., Treaty: Let's Get it Right! (Australian Institute of Aboriginal and Torres Strait Islander Studies, 2003).

47. Referendum Council, Final Report of the Referendum Council, i. The Uluru Statement also called for a national representative Indigenous body empowered to advise Parliament on laws that affect Indigenous peoples, as well as a process of local and regional truth-telling.

48. Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic).

49. The Barunga Agreement (June 8, 2018), 13.

50. Kyam Maher MLC, ‘Treaty Speech’ (Parliament House, Adelaide, December 14, 2016), https://statedevelopment.sa.gov.au/upload/aboriginal-affairs/treaty-speech.pdf?t=1504335059137; Dr Roger Thomas, Treaty Talk: Summary of Engagements and Next Steps (Office of the Treaty Commissioner, July 2017).

51. Michael Owen, ‘Aboriginal People Failed by “Expensive Gesture” Treaties’, The Australian, June 11, 2018, https://www.theaustralian.com.au/national-affairs/indigenous/aboriginal-people-failed-by-expensive-gesture-treaties/news-story/84b000a2f0b81c82801d93cc9a45cb3c.

52. Stephen Fitzpatrick and Michael McKenna, ‘Queensland Considers Treaty Talks as Federal Bids Stall’, The Australian, July 17, 2018, https://www.theaustralian.com.au/national-affairs/indigenous/queensland-considers-treaty-talks-as-federal-bids-stall/news-story/1431f48699d2085e65631efcb9e55a02.

53. Calla Wahlquist, ‘NSW Labor Plans to Sign Treaty Recognising Indigenous Ownership’, Guardian Australia, January 25, 2018, https://www.theguardian.com/australia-news/2018/jan/25/nsw-labor-plans-to-sign-treaty-recognising-indigenous-ownership.

54. Matthew Denholm, ‘Tasmanian Labor promises Aboriginal Treaty Talks’, The Australian, June 1, 2017, http://www.theaustralian.com.au/national-affairs/indigenous/tasmanian-labor-promises-aboriginal-treaty-talks/news-story/a5352d573913ce86794ff641a37806bc. See further Hobbs and Williams, ‘Treaty Making in the Australian Federation’.

55. Gian De Poloni, ‘WA Premier Signs $1.3 Billion Noongar Native Title Settlement’, ABC News, June 8, 2015, http://www.abc.net.au/news/2015-06-08/premier-signs-noongar-native-title-settlement/6530434.

56. Hobbs and Williams, ‘The Noongar Settlement’.

57. Western Australia, Parliamentary Debates, Legislative Assembly, November 19, 2015, 8688.

58. Hamish Fitzsimons, ‘Victorian Government to Begin Talks With First Nations on Australia's First Indigenous Treaty’, ABC News, February 26, 2016, http://www.abc.net.au/news/2016-02-26/victoria-to-begin-talks-for-first-indigenous-treaty/7202492.

59. Aboriginal Victoria, Summary of the Aboriginal Victoria Forum, May 26–27, 2016, Melbourne (2016) 1.

60. Aboriginal Victoria, Aboriginal Treaty Interim Working Group, Terms of Reference (2017).

61. Ibid., TOR 4.

62. Aboriginal Treaty Interim Working Group, Aboriginal Community Consultations on the Design of a Representative Body (December 2016).

63. Aboriginal Treaty Interim Working Group, Aboriginal Community Consultations on the Design of a Representative Body—Phase 2 (June 2017) 9.

64. Aboriginal Treaty Interim Working Group, Treaty Circle Facilitators Handbook (2017), 27.

65. Ibid.

66. Aboriginal Treaty Interim Working Group, Aboriginal Community Consultations on the Design of a Representative Body—Phase 2, 6.

67. NITV Staff Writer, ‘Victorian Government Commits $28.5M for Treaty Discussions, Amid Confusion and Criticism’, NITV News, May 2, 2017, http://www.sbs.com.au/nitv/nitv-news/article/2017/05/01/victorian-government-commits-285m-treaty-discussions-amid-confusion-and-criticism.

68. Aboriginal Victoria, ‘Victorian Treaty Advancement Commission’, https://www.vic.gov.au/aboriginalvictoria/treaty/victorian-treaty-advancement-commission.html.

69. Aboriginal Community Assembly Information Handbook: Continuing on the Journey towards Treaty (2017) 15.

70. Aboriginal Community Assembly, Final Statement and Recommendations to the Aboriginal Treaty Working Group (December 2017), 3.

71. Reconciliation Victoria, ‘Jill Gallagher Named Victorian Treaty Advancement Commissioner’, http://www.reconciliationvic.org.au/news/jill-gallagher-named-victorian-treaty-advancement-commissioner.php.

72. Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic), ss 21–5.

73. Will Kymlicka, ‘Beyond the Indigenous/Minority Dichotomy?’, in Reflections on the UN Declaration on the Rights of Indigenous Peoples, eds. Stephen Allen and Alexandra Xanthaki, (Hart, 2011), 183, 188. See UNDRIP arts 6, 8(1)–(2), 9, 33, 36(1).

74. Claire Charters, ‘Use It or Lose It: The Value of Using the Declaration on the Rights of Indigenous Peoples in Māori Legal and Political Claims’, in International Indigenous Rights in Aotearoa New Zealand, ed. Andrew Erueti (Victoria University of Wellington Press, 2017), 137, 151.

75. Advancing the Treaty Process with Aboriginal Victorians 2018 Bill (introduced 7 March 2018).

76. Greens Amendments, item 24, proposed insertion of Clause E after Clause 21; Victoria, Parliamentary Debates, Legislative Assembly, June 7, 2018 (clause defeated); Victoria, Parliamentary Debates, Legislative Council, June 21, 2018, 2924 (clause negatived).

77. Advancing the Treaty Process with Aboriginal Victorians 2018 Act (Vic), preamble (emphasis added).

78. Aboriginal Victoria, Working with Aboriginal Intangible Heritage, https://www.vic.gov.au/aboriginalvictoria/heritage/aboriginal-intangible-heritage-in-victoria/working-with-aboriginal-intangible-heritage.html (accessed July 19, 2018).

79. Victoria, Parliamentary Debates, Legislative Assembly, March 27, 2018, 806–7.

80. Victoria, Parliamentary Debates, Legislative Assembly, March 28, 2018, 871 (Narelle Hutchins, Minister for Aboriginal Affairs), June 5, 2018, 1723 (Lily D’Ambrosio), 1738 (Sonya Kilkenny), 1741 (Steve Dimopoulos), June 7, 2018, 1923–4 (Richard Wynne, Narelle Hutchins); Legislative Council, June 21, 2018, 2915, 2925 (Gavin Jennings). No members of the Opposition have cited the UNDRIP. Accurate as of January 14, 2019.

81. Victoria, Parliamentary Debates, Legislative Assembly, November 26, 2015, 5132 (Narelle Hutchins).

82. Victoria, Parliamentary Debates, Legislative Assembly, October 8, 2015, 3668 (Anthony Carbines); Victoria, Parliamentary Debates, Legislative Assembly, October 20, 2015, 3805 (Heidi Victoria; opposition member).

83. Daniel Andrews, ‘Closing the Gap – Premier's Speech’, March 19, 2015.

84. Victoria, Parliamentary Debates, Legislative Assembly, November 26, 2015, 5132 (Narelle Hutchins, Minister for Aboriginal Affairs).

85. Victoria, Parliamentary Debates, Legislative Assembly, June 22, 2017, 2061 (Narelle Hutchins, Minister for Aboriginal Affairs).

86. Victoria, Victorian Budget 18/19: Getting Things Done – Overview (2018), 40.

87. Victoria, Parliamentary Debates, Legislative Council, November 8, 2016, 5851 (Mr Herbert).

88. Traditional Owner Settlement Amendment Act 2016 (Vic); Victoria, Parliamentary Debates, Legislative Council, November 8, 2016, 5837 (Gayle Tierney).

89. Aboriginal Treaty Interim Working Group, Aboriginal Community Consultations on the Design of a Representative Body—Phase 2, 6.

90. Victoria, Parliamentary Debates, Legislative Assembly, March 28, 2018, 870.

91. Victoria, Parliamentary Debates, Legislative Council, June 8, 2018, 2571 (Gavin Jennings).

92. Jill Gallagher, ‘The Treaty Process in Victoria’ (address to the public law conference, The Frontiers of Public Law, University of Melbourne, 13 July 2018).

93. Rachel Hocking, ‘Where is Treaty at in Victoria’, NITV News, April 17, 2017 http://www.sbs.com.au/nitv/nitv-news/article/2017/04/17/where-treaty-victoria. Thorpe became the first Aboriginal woman elected to the Victorian Parliament after a by-election in November 2017.

94. UNDRIP art 43.

95. Kyam Maher MLC, ‘Treaty Speech’ (Parliament House, Adelaide, December 14, 2016) https://statedevelopment.sa.gov.au/upload/aboriginal-affairs/treaty-speech.pdf?t=1504335059137.

96. Kirsty Gover, ‘The Honour of the Crowns: State–Indigenous Fiduciary Relationships and Australian Exceptionalism’, Sydney Law Review 38 (2016): 339.

97. R v Badger [1996] 1 SCR 771, 794 [41] (La Forest, L’Heureux-Dubé, Gonthier, Cory and Iacobucci JJ).

98. Julie Jai, ‘Bargains Made in Bad Times: How Principles from Modern Treaties can Reinvigorate Historic Treaties’, in The Right Relationship: Reimagining the Implementation of Historical Treaties, eds. John Borrows and Michael Coyle (University of Toronto Press, 2017), 105, 117.

99. For example, for criticism of the 1975 James Bay and Northern Quebec Agreement see: Paul Rynard, ‘“Welcome In, But Check Your Rights at the Door”, The James Bay and Nisga’a Agreements in Canada’, Canadian Journal of Political Science 33 (2000): 211, 217.

100. Canada, Parliamentary Debates, House of Commons, Vol 148, no. 264, February 14, 2018, 17219 (Justin Trudeau); Bill C-262 (2016).

101. John Horgen, ‘Statement from Premier John Horgan on the 10th Anniversary of the UN Declaration on the Rights of Indigenous Peoples’ (Media Release, 13 September 2017).

102. Bennett,‘Speaking Notes’.

103. British Columbia Treaty Commission, Annual Report 2016 (2017), 1.

104. British Columbia Ministry of Indigenous Relations and Reconciliation, 2018/19–2020/21 Service Plan (2018), 6.

105. Blaine Favel and Ken Coates, Understanding UNDRIP (McDonald-Laurier, 2016), 10.

106. Jason Tockman, ‘Eliding Consent in Extractivist States: Bolivia, Canada, and the UN Declaration on the Rights of Indigenous Peoples’, The International Journal of Human Rights 22 (2018): 325, 338.

107. Ravi de Costa, ‘History, Democracy, and Treaty Negotiations in British Columbia’, in The Power of Promises: Rethinking Indian Treaties in the Pacific Northwest, ed. Alexandra Harmon (University of Washington Press, 2008), 297, 305.

108. Taiaiake Alfred, ‘Deconstructing the British Columbia Treaty Process’, Balayi: Culture, Law and Colonialism 3 (2001): 37, 39–43.

109. James Tully, ‘Reconsidering the B.C. Treaty Process’, in Speaking Truth to Power: A Treaty Forum (British Columbia Treaty Commission, 2000), 3, 8.

110. John Borrows, ‘Practical Recolonisation?’, UNSW Law Journal 28 (2005): 614.

111. Michael Owen, ‘Aboriginal People Failed by “Expensive Gesture” Treaties’, The Australian, June 11, 2018, https://www.theaustralian.com.au/national-affairs/indigenous/aboriginal-people-failed-by-expensive-gesture-treaties/news-story/84b000a2f0b81c82801d93cc9a45cb3c.

112. Patrick Macklem, ‘The Constitutional Identity of Indigenous Peoples in Canada: Status Groups or Federal Actors?’ (working paper, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2956605), 12. To be published in Andrew Arato, Jean Cohen and Astrid von Busekist, eds., Forms of Pluralism and Democratic Constitutionalism (Columbia University Press, 2018).

113. James [Sakej] Henderson, ‘Interpreting Sui Generis Treaties’, Alberta Law Review 37 (1997): 46, 46.

114. Russel Lawrence Barsh and James Youngblood Henderson, The Road: Indian Tribes and Political Liberty (University of California Press, 1980), 270. See further James Youngblood Henderson, ‘Empowering Treaty Federalism’, Saskatchewan Law Review 58 (1994): 241, 323.

115. Harry Hobbs, ‘Constitutional Recognition and Reform: Developing an Inclusive Australian Citizenship through Treaty’, Australian Journal of Political Science 52 (2018): 176.

116. British Columbia Treaty Commission, Annual Report 2016, 17: ‘It leads to the recognition of Nation-to-Nation relationships, a recognition that shapes the negotiations and leads to constitutionally entrenched treaties.’

117. Paul Patton, ‘The “Lessons of History”’, in Empire by Treaty: Negotiating European Expansion 1600–1900, ed. Saliha Belmessous (OUP, 2014), 243, 250.

118. Davis, ‘Indigenous Struggles in Standard-Setting’, 465.

119. Megan Davis, ‘Indigenous Rights and the Constitution: Making the Case for Constitutional Reform’, Indigenous Law Bulletin 7, no. 6 (2008): 6, 8.

120. Davis, ‘Indigenous Struggles in Standard-Setting’, 468.

121. Charters,‘Use It or Lose It’. See also Michael Dodson, quoted in Australian Human Rights Commission, The Community Guide to the UN Declaration on the Rights of Indigenous Peoples (2010), 65.