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Thank you, Madam Chair,

It is a privilege to sit here with you on this panel today in my capacity as Australia’s Aboriginal and Torres Strait Islander Social Justice Commissioner, and on behalf of the �����鱨վ, Australia’s National Human Rights Institution. 

As is the custom in my country, I acknowledge the Lenape and Onondaga Peoples who are the traditional custodians of Manhattan Island, and pay my respects to their Elders past, present and rising. I also acknowledge all Indigenous Peoples and Government representatives here with us today. 

I also take this opportunity to congratulate the appointed Chair and Vice Chairpersons appointed to this Forum.

In answering the question as to how Member States have implemented the Declaration successfully into national policies, I think it’s important that we look at four key elements:

• Design – the extent to which States have incorporated the Declaration and its articles into the drafting of legislation and policy frameworks
• Practice – the degree to which State actions on the ground are aligned with the Declaration
• Evaluation – the standard to which States are reporting progress towards fulfilment of the Declaration
• Accountability – the presence of mechanisms which oblige States to acknowledge failures at any of these levels and put in place measures to improve performance.

All four are essential to genuine progress.

While there is no single way to implement the Declaration, the �����鱨վ promotes a principled approach which can be categorised into four key sets of principles:

• Self-determination
• Participation in decision-making, underpinned by free, prior and informed consent and good faith
• Respect for and protection of culture; and
• Equality and non-discrimination.

These four principles provide guidance on how First Nations communities, governments, civil society and the private sector can apply the Declaration to fully realise the human rights of Indigenous peoples. 

With respect to challenges, for many Indigenous Peoples - progress has been slow, uncoordinated and indirect. Many states have yet to put all the pillars in place required to achieve effective implementation.

I reference the introductory remarks provided by the Secretary General yesterday – “that the rights of Indigenous Peoples are not negotiable”.

One of the greatest challenges to implementing the Declaration, is that at country levels, the rights of Indigenous Peoples are negotiable, they are dispensable, and they are subject to populist politics.

Indigenous Peoples are required to sit with governments to negotiate what rights are palatable and what rights are not.

This is subject to the priorities of those governments, rather than the priorities, needs, and the full suite of affirmed rights of Indigenous Peoples within the Declaration.

Without appropriate accountability mechanisms in place, at both the international and domestic levels, States will continue to determine, without the active engagement of Indigenous Peoples, which rights are implemented and which rights are not.

For example, In Australia, the absence of national leadership or a national legal mechanism to hold governments accountable to their human rights obligations, including Indigenous Peoples rights, has resulted in governments wilfully opposing and discarding their obligations, and directly contradicting their commitments. This is reflected in policy and legislation that are discriminatory in practice and disproportionately impact the lives of Aboriginal and Torres Strait Islander peoples.

Indigenous Peoples have limited options for remedy or recourse, other than to enter arduous international and domestic complaints processes, or take legal action, both of which require substantial resources.

In November last year, Australia’s Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs released its report on the Application of the Declaration in Australia. We eagerly await a response to this Inquiry Report, which recommended the development of a National Action Plan, in consultation with Aboriginal and Torres Strait Islander peoples, as well as legislative reforms that would require assessment against the Declaration in the design, development and implementation of draft laws presented to the Parliament.

Importantly, States are not in a position to shift into a pattern of genuine progress without a sound and vocal accountability mechanism to identify what needs to change and where the work needs to be prioritised. This is why UN processes and independent NHRIs are so important.

The Office of the Social Justice Commissioner for example, the role I currently hold within Australia’s National Human Rights Institution, has a specific mandate to monitor and report on the exercise and enjoyment of Indigenous rights, centering the Declaration and creating a level of transparency, and advising governments on their efforts to respond to their obligations.

However, governments must be willing to engage and committed to achieving positive outcomes.

There are also technical hurdles to implementation. While the four key sets of principles in the Declaration are understood conceptually within human rights theory, applying them practically at the local level has often been a challenge because Governments:

• often interpret these core principles purely in the context of international law, through a state sovereignty lens as it relates to their relationships with other world governments – ignoring or denying First Nations status as sovereign Peoples and as rights holders;

  and because

• Indigenous peoples have not often been resourced and engaged to describe and clarify what these core principles mean practically to their development and how governments should work with them to achieve them. 

One of the key barriers to success globally has been States’ continuing struggle politically, conceptually and practically with notions of power-sharing, co-design, and co-delivery.

All are essential for self-determination and effective implementation of the Declaration. The importance of Indigenous representative structures, well-resourced Indigenous organisations, and the means to engage in international fora like this are key considerations for State engagement of Indigenous leaders and Indigenous Peoples.

In Australia, the withdrawal of funding for the National Congress of Australia’s First Peoples, and the failed National Referendum to establish a Constitutionally enshrined Voice to Parliament, have left Aboriginal and Torres Strait Islander peoples with no national Indigenous representative structure through which to progress national priorities and reform.

It is however, encouraging to see active representation of Aboriginal and Torres Strait Islander peoples here at this forum facilitated by grant funding provided by the Australian Government. However, this investment in Indigenous leadership capability must be a sustained commitment – as a “minimum standard” required by the Declaration.

Thank you.