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Monday, 10 September 2007
Page: 53


Senator PAYNE (4:12 PM) —I rise to participate in this debate this afternoon on the United Nations Draft Declaration on the Rights of Indigenous Peoples. I start where Senator Bartlett ended, with the observation that, in the view of the Australian Democrats at least, this is a matter of some urgency. I do not think there is substantial demur about the importance of the declaration itself. In fact, its lengthy and considered development would indicate that, but I really do not think that the importance of considering it in a rushed manner when there are still matters to be resolved, certainly as far as our government and a number of other governments are concerned, is outweighed by the urgency that Senator Bartlett has in his view identified. It was interesting that in his early remarks he indicated that Australia—Canada can speak for itself—is one of the least supportive governments publicly. I find that somewhat ironic given that, in the development of the declaration itself, which has been in play now for over a decade, Australia has been intimately and constructively involved in that process. In many ways, the amount of time that has been spent and the engagement of senior officials which has been undertaken are an acknowledgement and an indication of the fact that we do regard this as an important piece of work by the United Nations.

Senator Bartlett made a number of specific references, including one to the right of self-determination, which I will come to in a moment. We support a meaningful declaration which will hopefully be achieved by a consensus of the states setting what would be regarded as a new standard of achievement with the potential to make some real difference in the circumstances of indigenous peoples across the world. We believe that indigenous peoples deserve and need a declaration which can be implemented meaningfully, not one which is rushed for the sake of signing on a particular dotted line.

As I said before, we have been involved in this process for over 10 years. We approached the consultations that were held in New York recently in a constructive, engaged and flexible manner. We put on record in New York the fact that our concerns could be met through very limited changes to the Chair’s text. We made a concerted effort to reduce our key concerns to the minimum number of possible changes so that we were not seeking a complete rewrite of the entire declaration, which would obviously be an extraordinary process. We are not trying to have the entire text renegotiated.

As I understand it, when a moderator, His Excellency Hilario Davide of the Philippines, was appointed to convene the recent consultations on the Declaration in New York, he recommended to the President of the UN General Assembly that a limited portion of the text that was adopted by the vote in the Human Rights Council in June last year be reopened. We thought that was a sound recommendation. We thought it would have honoured the spirit of the GA resolution of November 2006 which in fact deferred consideration of the declaration pending further consultations. We welcomed the GA decision to defer adoption of the declaration text to allow for further consultations.

I note Senator Bartlett’s observations about Australia’s attitude and approach to the UN, but we have always said that it is our strong preference that human rights instruments in particular be adopted by consensus to ensure the broadest possible support. This text was lacking in consensus. It was hastily put to the Human Rights Council for adoption and it was done without full and final consultations. In fact, as I understand it from the statement issued by Australia, New Zealand and the United States during the Human Rights Council in June 2006 by Her Excellency Caroline Millar, our ambassador and permanent representative to the UN in Geneva, the text was issued over the internet with no opportunity for states to discuss it collectively, which does not seem to me like the most constructive process in the world.

We have a number of procedural concerns. We are concerned, as I said, that we have not been given the opportunity as states to discuss the text collectively because it was prepared and submitted by the chair of the working group after negotiations had concluded. There was plenary discussion about the declaration in June this year. There has still been no actual collective read-through of the final text and, as Senator Bartlett indicated, it is due to be considered on 13 September in the 61st Session of the GA. We will base the final decision on our voting position on the exact terms of any text which is put to the vote. I note that Senator Bartlett raises some issues about the current drafting of article 46. We really cannot support a text that does not address our key concerns, which have been put on the record, both singly and in company with other nations, on a number of occasions in the General Assembly, the Human Rights Council and the predecessor of the Human Rights Council, the Commission on Human Rights. There has been advanced, in recent times, a so-called African-Mexican compromise text, but we are still concerned about that because we do not think it adequately addresses our key concerns, which include the need for safeguards that will protect the territorial integrity of states and also the rights of third parties.

I will identify the six key concerns we have with the text as it currently stands. Notwithstanding Senator Bartlett’s observations about the drafting of the language in article 46, we still have concerns about the references to self-determination and the potential for misconstruing those. I do not see any particularly significant problem with trying to get clarity around that so that as many people as possible support the declaration. There are other states which have the same concerns.

On the question of land and resources, we are concerned that the provisions on those areas in the text ignore the contemporary realities of many countries which have indigenous populations. They seem, to many readers, to require the recognition of indigenous rights to lands which are now lawfully owned by other citizens, both indigenous and non-indigenous, and therefore to have some quite significant potential to impact on the rights of third parties.

Intellectual property is the third point we would raise. We believe that, as our laws here currently stand, we protect our Indigenous cultural heritage, traditional knowledge and traditional cultural expression to an extent that is consistent with both Australian and international intellectual property law, and we are not prepared to go as far as the provisions in the text of the draft declaration currently do on that matter.

We also have concerns about the inclusion in the text of an unqualified right of free, prior and informed consent for indigenous peoples on matters affecting them, which implies to some readers that they may then be able to exercise a right of veto over all matters of state, which would include national laws and other administrative measures. That would obviously be of concern to any sovereign government.

Further on the question of third-party rights, in seeking to give indigenous people exclusive rights over intellectual, real and cultural property, the draft text does not acknowledge the rights of third parties—in particular, their rights to access indigenous land and heritage and cultural objects where appropriate under national law. That should not be a big stumbling block, but it is a matter which we wish to see addressed. The text in its current form fails to consider the different types of ownership and use that can be accorded to indigenous people and the rights of third parties to property in that regard.

I also want to make a note about matters of customary law. There are concerns about the way the text is currently drafted on the question of customary law and whether that may place indigenous customary law in a superior position to national law. We understand in talking about customary law that it is a law based on culture and tradition and is not one which is expected to override national laws and is certainly not one which should be used selectively by certain indigenous communities where it is possibly convenient to permit the exercise of practices which would not be acceptable across the broad.

They are the six points where we have concerns. We have tried very constructively—and I really do commend the statement by Her Excellency Caroline Millar on behalf of Australia, New Zealand and the United States in the Human Rights Council in June last year. She is intimately acquainted with this process. She has set out very, very clearly, for the council and for those who are interested, where the concerns actually are. It is a very constructive statement and one which I think others would do well to read. In that statement and on behalf of those nations she also made a number of suggestions about alternative procedures which could be taken which seem to have been ignored. (Time expired)