Issues and Insights Article, 48th Parliament

Rights and recognition of Aboriginal and Torres Strait Islander Peoples

Recognition of prior occupation of Australia by Aboriginal and Torres Strait Islander peoples is an unresolved issue in Australia, despite many attempts over the years. How does Australia compare to other countries in their relationships with indigenous peoples, and what might the future hold for Indigenous rights and recognition in Australia?

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Key issues

The recognition of the rights of Aboriginal and Torres Strait Islander peoples through a treaty or constitutional recognition is a longstanding unresolved issue in Australia, despite many attempts over the years.
This lack of formal recognition is in direct contrast to countries with a similar colonial history to Australia.
Although the 2023 Voice Referendum did not pass, the formal recognition of Indigenous rights in Australia remains an issue of interest to many.

Introduction

There is a long history of advocacy and activism in Australia for the recognition and advancement of Aboriginal and Torres Strait Islander rights. This recently found expression in the 2023 Voice Referendum, which sought to embed a permanent participatory structure for Aboriginal and Torres Strait Islander peoples within the Australian Constitution, as requested in the 2017 Uluru Statement from the Heart. While the referendum was unsuccessful, with around 60% of votes against the proposal, the push for recognition through public acknowledgements, partnership approaches, government policies and practices, and legal avenues continues.

This article considers how Australia compares to countries with a similar colonial history in their relationships with indigenous peoples, and what the future might hold for the campaign for Indigenous rights and recognition in Australia.

Rights-based approaches

Aboriginal and Torres Strait Islander peoples’ rights encompass both individual human rights, as described in the 7 core human rights treaties to which Australia is a party, and – through their longstanding and prior occupation of the land now known as Australia – collective rights. In Australia, these collective rights are reflected in the recognition of native title and other land rights, the continuing and renewed practices of culture, and the retention and renewal of languages. Claims of self-determination and sovereignty reflect the desire for formal recognition of status as the first peoples of Australia, as well as greater autonomy over their lives and livelihoods.

Past explicit discrimination practices (such as the denial of voting and other rights, systems of segregation, oppressive ‘protection’ regimes, and slave-like labour conditions), coupled with the non-recognition of rights as Indigenous peoples, have led to sustained and substantial inequalities in life outcomes for Aboriginal and Torres Strait Islander peoples compared to the broader Australian population. These disparities continue today, with the National Agreement on Closing the Gap being the current strategy to address them.

Over time, explicit discrimination within the Australian legal system has been addressed through legislation (including the Racial Discrimination Act 1975) and various policy changes reflecting changing societal attitudes.

In comparison, securing collective rights, and recognition of the unique status of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia, has been much harder to achieve. For example, while the 1992 High Court Mabo decision overturned the doctrine of terra nullius, enabling greater input into land use decisions by Aboriginal and Torres Strait Islander peoples, the subsequent history of native title legislation is chequered. The 1996 Wik Peoples High Court decision prompted the then-controversial 10 point plan and the Native Title Amendment Act 1998, and the 2020–21 Parliamentary inquiry into the destruction of caves at Juukan Gorge found power disparities and ‘serious failings of legislation’ that catastrophically impacted the Puutu Kunti Kurrama and Pinikura peoples.

More recently, following several years of consultation, research, and inquiries into options for recognising the prior occupation of Australia by Aboriginal and Torres Strait Islander peoples, the Uluru Statement from the Heart sought a constitutionally-enshrined Voice to Parliament and a Makarrata Commission to supervise a process of agreement-making and ‘truth-telling’. However, the 2023 Voice referendum result rejected the first part of that request, and the second is also in doubt.

Global context

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the UN General Assembly on 13 September 2007. While at that time, Australia, New Zealand, Canada and the US voted against the resolution, all 4 countries have since endorsed the declaration, with Australia doing so in April 2009.

The declaration covers human rights relating to indigenous peoples, including self-determination, participation in decision-making, respect for and protection of culture, and equality and non-discrimination, stating:

… indigenous individuals are entitled without discrimination to all human rights recognized in international law, and that indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples.

However, the declaration is not legally binding under international law, and there is no obligation for nation states to ensure their domestic law permits them to meet their obligations (as would be the case with an international treaty). Nevertheless, some countries have committed to its domestic implementation:

Canada passed the United Nations Declaration on the Rights of Indigenous Peoples Act in June 2021, and released its national UNDRIP action plan 2023–2028 two years later.
New Zealand had commenced development of a national action plan to implement the UNDRIP, although work is now paused following the change of government in October 2023.

Australia’s lack of formalised rights-based approaches to Indigenous matters contrasts with comparable countries such as New Zealand, Canada, and the US. These countries, also with a British colonial history, have treaties and treaty resolution frameworks, enduring indigenous representative organisations, and government policies that support indigenous empowerment and self-determination. Canada and the US have also enshrined constitutional recognition of indigenous peoples and their rights.

Rights and recognition in New Zealand, the US and Canada

New Zealand

The Treaty of Waitangi (Te Tiriti o Waitangi), referred to as the ‘founding document’ of New Zealand, was signed on 6 February 1840. Following many years of breaches of the treaty, the Treaty of Waitangi Act 1975 established the Waitangi Tribunal, which has exclusive authority to determine the treaty’s meaning and effect. It also conducts kaupapa (thematic) inquiries into significant issues affecting Māori (such as housing, health and justice).
The Māori Representation Act 1867 provides dedicated seats (currently 7) in Parliament for Māori.

United States

A series of recently affirmed 19th-century US Supreme Court judgments, known as the Marshall Trilogy, established the relationship between the US Government and Native American peoples, including the exclusive authority to regulate Indian affairs (under Article I, Section 8 of the US Constitution).
The US has entered into more than 400 treaties with Native American peoples, of which at least 374 have been ratified by Congress. Key terms of these treaties included peace-making and land exchanges for land, goods and/or services. However, many of these were broken, leading to challenges in court, some of which are ongoing.

Canada

Canada’s Constitution ‘recognises and affirms’ aboriginal and treaty rights (Section 35), providing constitutional protection of historic and modern treaties, as well as collective indigenous rights.
The Canadian Government has a fiduciary relationship with indigenous peoples, meaning it has a legal obligation to act in their best interests and uphold aboriginal rights, particularly those relating to reserve lands.
The territory of Nunavut, a homeland for the Inuit of Canada, was created under the 1993 Nunavut Land Settlement Agreement. Nunavut has ‘a consensus government system, which blends the principles of parliamentary democracy with Inuit values of cooperation, egalitarianism and communal decision-making’.

Rights-based versus practical approaches – either or both?

Australia has no treaty or constitutional recognition of Indigenous rights and has not adopted an explicit rights-based approach in Indigenous matters. Some preliminary steps were taken in the 1970s, with the establishment of the National Aboriginal Consultative Committee (1973–77) by the Whitlam Government, followed by the National Aboriginal Conference (1977–85) under the Fraser Government, and the enactment of land rights legislation for the Northern Territory. However, a 1983 Hawke Government commitment to advancing Indigenous rights through national land rights legislation was not fulfilled. While the Mabo 1992 High Court decision recognised the occupation of Australia by Aboriginal and Torres Strait Islander peoples prior to British settlement, it also recognised the susceptibility of native title to extinguishment. The Native Title Act 1993 sought to strike a balance between the recognition and protection of native title and clarity surrounding the status of other property interests.

The Aboriginal and Torres Strait Islander Commission (ATSIC, 1990–2005), was the longest sustained attempt by government to formalise and work with a participatory structure involving Indigenous peoples. The elected body of ATSIC – the Board of Commissioners – introduced and advocated for a rights-based approach to Indigenous matters in Australia, while also overseeing government programs to address socio-economic disadvantage. The ATSIC rights-based agenda included awareness-raising activities, participation in the UN Working Group on Indigenous Populations, and consultation on possible treaty options. The rights-based focus of the ATSIC Board of Commissioners was juxtaposed against the Howard Government’s focus on ‘practical’ approaches to improve health, housing, education and employment outcomes. Prime Minister Howard coined the term ‘practical reconciliation’, defining this as separate from ‘symbolic gestures’ (initially in the context of an apology to the Stolen Generations, and subsequently more broadly).

Since ATSIC’s demise, a practical, outcomes-focused service delivery approach to address socio-economic disparities between the Indigenous and non-Indigenous populations in Australia has become the default focus for governments. The original National Indigenous Reform Agreement (2008–18) for Closing the Gap on Indigenous Disadvantage took this approach. Rights and recognition processes (such as the various consultations from 2011 to 2017 relating to options for constitutional recognition) were progressed separately. However, after 10 years, only 2 of the Closing the Gap targets were on track (pp.10–11), and in 2018 a ‘refresh’ of the Closing the Gap approach commenced.

In comparison to the original Closing the Gap strategy, the current National Agreement on Closing the Gap can be considered an attempt to marry a rights-based approach with a service delivery outcomes framework. Key changes include the formalised involvement of Aboriginal and Torres Strait Islander peoples, commencing with the Partnership Agreement on Closing the Gap with the Coalition of Aboriginal and Torres Strait Islander Peak Organisations. Further, the 4 Priority Reforms in the National Agreement reflect the UN rights-based approaches of participation (see Priority Reform 1); accountability (Part 9 – ss 115–31); non-discrimination and equality (see Priority Reform 3); empowerment (see Priority Reform 2) and legality. A practical outcomes-focused approach is also embedded in the National Agreement, with the inclusion of 19 socio-economic targets across 17 life outcome areas, an expanded set of indicators from the original strategy. The socio-economic outcomes and targets sit alongside the Priority Reforms; however, achieving the Priority Reforms is the highest priority in the National Agreement.

While the National Agreement articulates and prioritises structural reforms that would support Aboriginal and Torres Strait Islander rights, a 2023 review by the Productivity Commission considered that its implementation has been considerably lacking, and that the agreement is likely to fail in its objectives if governments do not fundamentally alter their approach and give Aboriginal and Torres Strait Islander peoples more power over the decisions that affect their lives.

The UNDRIP has had limited influence to date in developing a rights-based approach in Australia. During 2022 and 2023, the Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs conducted an inquiry into the application of the UNDRIP in Australia. The report made 6 recommendations, including the ‘development of a National Action Plan … that outlines the approach to implementing the United Nations Declaration on the Rights of Indigenous Peoples in Australia’. The report remained under government consideration as at February 2025.

The recently appointed Aboriginal and Torres Strait Islander Social Justice Commissioner, Katie Kiss, commenced consultations in October 2024 seeking community input on 6 high-level rights-based priorities, including how to promote implementation of the UNDRIP in Australia.

Demographic change: implications for the future

A young and growing population

Australia’s Aboriginal and Torres Strait Islander population is rapidly growing and, in contrast with the non-Indigenous population, is overwhelmingly young, with a median age of 24 compared to 38 for the Australian population.

At the 2021 Census, 812,728 people (3.2% of the population) identified as Aboriginal and/or Torres Strait Islander, a 25% increase since 2016 (Figure 1). Changes in the Aboriginal and Torres Strait Islander population are due to both demographic and non-demographic factors, including increasing numbers of people identifying as Aboriginal and/or Torres Strait Islander over the last 20 years.

Figure 1 Percentage change in estimated resident population between Censuses

Source: Australian Bureau of Statistics (ABS), ‘Guide to using historical estimates for comparative analysis and reporting’, 24 July 2024.

The 2021 Census estimate appears to have undercounted the Aboriginal and Torres Strait Islander population by 17.4% (compared to a whole-of-population undercount of 0.7%). Adjusting for Census undercounting, the ABS estimates there were 983,700 Aboriginal and Torres Strait Islander people at 30 June 2021, representing 3.8% of the population. However, Census counts are the most commonly used estimates for population analysis, and for projecting and budgeting for government service provision. This means that expected use of these services is often underestimated.

Continued growth in the Aboriginal and Torres Strait Islander population is likely to result in increased budgetary demands on programs and services aimed at improving practical outcomes for Aboriginal and Torres Strait Islander peoples under the National Agreement on Closing the Gap. Further, while the Aboriginal and Torres Strait Islander population has aged over the last 3 Censuses (see Figure 2), the relatively young age structure may also affect demand for key government services and supports, such as health, education and training.

Figure 2 Aboriginal and/or Torres Strait Islander people by age, 2021, 2016 and 2011 Censuses

Source: ABS, Census Aboriginal and/or Torres Strait Islander people Quickstats, 2016 and 2021.

A key question for the future is what a young and growing Aboriginal and Torres Strait Islander population might mean for the campaign for Indigenous recognition. Young Aboriginal and Torres Strait Islander peoples are highly active online, and increasingly identify with transnational activist movements such as Black Lives Matter, Palestinian independence and climate justice. The fallout from the unsuccessful 2023 referendum, and the subsequent withdrawal of many senior Aboriginal and Torres Strait Islander leaders from earlier generations from the public sphere, may combine with these trends to produce increasing numbers of Aboriginal and Torres Strait Islander leaders (and movements) who are young, vocal and committed to change. Government and advocates alike may need to consider the question of how best to engage with these leaders and movements of the future within existing political and representative structures.

Where to from here?

Following the unsuccessful 2023 Voice referendum, Australian Government action in progressing other formal recognition processes has slowed, and early-stage treaty processes in Queensland and the Northern Territory have ceased. However, the issue remains important for a substantial proportion of both Aboriginal and Torres Strait Islander peoples and the broader Australian population, and some states are continuing with their own rights and recognition processes:

In Victoria, negotiations for a treaty commenced in November 2024.
The NSW Government is planning a 12-month consultation process with Aboriginal people during 2025 ‘about their desire for a treaty or other formal agreement and … what form this might take’.
The first elections for South Australia’s First Nations Voice were held in March 2024, with the body’s inaugural address to the South Australian Parliament taking place on 27 November 2024.
Western Australia has not instituted a specific treaty process, but the Noongar South West Native Title Settlement Agreement, negotiated within the context of the Native Title Act, has been described by some as Australia’s first treaty.

Aboriginal and Torres Strait Islander peoples have persistently advocated for the recognition and reclamation of their inherent rights. With around 40% of voters in the 2023 referendum in favour of the Voice proposal, and younger Australians more likely to vote yes than older Australians, it is clear that the campaign for Indigenous rights and recognition will remain on the public agenda for some time to come.