- International experience of implementing UNDRIP
- This Chapter outlines international experiences of implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the respective lessons for Australia.
International implementation of UNDRIP
3.2As discussed in Chapter 1, the United Nations (UN) General Assembly adopted UNDRIP by 143 votes to four, with Australia, Canada, New Zealand and the United States of America opposing the resolution in September 2007.
3.3Since then, a number of countries have implemented UNDRIP into law, while others are developing non-legislative ways forward, such as amendments to constitutions, policy-based approaches, and enhancing existing systems of recognising Indigenous rights. The Democratic Republic of the Congo (2006), Ecuador (2008), Kenya (2010), Mexico (2011 and 2016), Morocco (2011), Sweden (2011), Costa Rica (2014), ElSalvador (2014), Nicaragua (2014) and Chile (2016) have amended their constitutions to advance Indigenous peoples’ rights in-line with UNDRIP.
3.4In order to consider the lessons, challenges, and opportunities in implementing UNDRIP, the Committee heard from international experts and explored different approaches taken in New Zealand, Canada, Finland and Norway.
Aotearoa—New Zealand
Approach to implementation
3.5Similarly to Australia, New Zealand (NZ) initially withheld its support for UNDRIP.
3.6To understand the New Zealand context, it is important to note the following structures, which are described at a high level below:
- The New Zealand Māori Council is a statutory representative body established under the MāoriCommunity Development Act 1962 (NZ) as a national voice and policy-making body for Māori cultural, economic, social, and political wellbeing. The Māori Council comprises 48 members, nominated from 16 District Māori Councils within which there are more than 120 Māori Committees, which may be organised into clusters as Māori Executives.
- In the New Zealand Parliament, there are seven reserved Māori Electorate Seats, where representatives are elected by voters on the Māori electoral roll.
- The Treaty of Waitangi (or Te Tiriti o Waitangi) is a group of documents from 1840 which together ‘represent an agreement drawn up between representatives of the British Crown on the one hand and representatives of Māori Iwi and Hapū on the other.’ The Treaty of Waitangi Act 1975 (NZ) provides for the ‘observance, and confirmation, of the principles of the Treaty of Waitangi’.
- The Waitangi Tribunal is a standing commission of inquiry, comprising up to 20 members, which ‘makes recommendations on claims brought by Māori relating to legislation, policies, actions or omissions of the Crown that are alleged to breach the promises made in the Treaty of Waitangi.’
- The National Iwi Chairs Forum is a group of Iwi leaders who come together with the purpose to ‘Share information; Work collaboratively on key priorities of Iwi within the National Iwi Chairs Forum; and Advocate the collective priorities of the Iwi within the National Iwi Chairs Forum in discussions with others, recognising the rangatiratanga/independence of Iwi.’
- To date, New Zealand has not incorporated the Declaration into law. However, it has been incorporated in other ways, including through policy and judicial forms. Forexample, the Declaration has been referenced in several decisions of the Supreme Court of New Zealand and extensively in rulings of the Waitangi Tribunal.
- The Māori have the formal capacity to make representations through the statutory functions of the Māori Council, and through the specific Māori electorates represented in the New Zealand Parliament.
- On 20 April 2010, New Zealand affirmed its support for the Declaration, citing the interconnection between the principles and the Treaty of Waitangi:
New Zealand’s support for the Declaration represents an opportunity to acknowledge and restate the special cultural and historical position of Māori as the original inhabitants, the tangata whenua, of New Zealand. It reflects our continuing endeavours to work together to find solutions and underlines the importance of the relationship between Māori and the Crown under the Treaty of Waitangi [Te Tiriti o Waitangi]. Its affirmation of longstanding rights supports and safeguards that ongoing relationship and its proclamation of new aspirations give us all encouragement and inspiration for the future.
3.10In 2014, a United Nations Human Rights Council Universal Periodic Review recommended that New Zealand commit to concrete measures to implement and promote UNDRIP, including the development of a National Action Plan in consultation with Māori, as well as taking steps to align national policy and legislation with the Declaration.
3.11In March 2019, the New Zealand Government commenced a process to develop a National Action Plan and engagement strategy to implement the Declaration in partnership with Māori leaders and representatives (through the National Iwi Chairs Forum), and the New Zealand Human Rights Commission (NZHRC). TheNewZealand Government also announced it would create a technical working group, chaired by Dr Claire Charters, to develop a report, He Puapua, on proposals for a plan articulating the country’s commitment to UNDRIP.
3.12To assist in the development of a National Action Plan, the NZHRC and National IwiChairs Forum called on the United Nations Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) to undertake a country engagement mission to NewZealand.
3.13Importantly, it was the non-government negotiating parties who were the ‘requestors’ for this assistance from the EMRIP to provide ‘technical advice on the development of domestic legislation and policies regarding the rights of Indigenous peoples. The EMRIP undertook the mission to New Zealand in April 2019, and on 14 July 2019 released an Advisory Note to the negotiating parties on the implementation of UNDRIP.
3.14In June 2021, the New Zealand Government agreed to targeted engagement and public consultations on an approach to implement a Declaration Action Plan. The Government described the purpose of the Declaration Action Plan as follows:
The Declaration plan will reaffirm New Zealand’s commitment to realising the Declaration and will present a roadmap of actions to be taken to achieve change. This may require some adjustment to our legal and policy settings over time.
3.15From late 2021, six-months of workshops were held in New Zealand to inform the plan. A draft Declaration plan was due to be presented to the New Zealand Cabinet and then released for public consultation by June 2022, with the final Declaration plan to be presented to Cabinet by the end of 2022.
3.16At its hearing on 31 March 2023, the Committee heard about how the governance structure adopted to develop the National Action Plan was unique. Appearing with the New Zealand Māori Council in her personal capacity, ProfessorClaire Charters described the structure:
It involved having five national Iwi chairs, leaders at the governance level, sitting alongside four ministers in partnership. That is quite new, to have cabinet members working in partnership, with the idea that one couldn't veto the other, together to develop that plan. The whole structure, from there on down, emulated that in the sense that the steering committee—I was the National Iwi Chairs' representative on the steering committee. There was a Government senior official and a senior person from the Human Rights Commission. And then we had our working people. I want to highlight that structure, because I do think that that's unique and evidences a genuine partnership in that approach.
3.17The Committee received evidence through its inquiry that, despite the country’s progress in negotiations, the National Action Plan’s development was placed on holdby the New Zealand Government. On why the negotiations were paused, Professor Charters put to the Committee that:
Effectively, that was because the minister expressly stated this because he thought we were going too far to be progressive, more or less. While this is not an official explanation…there is a lot of nervousness about having the plan on the political agenda in an election year because these issues have been very divisive, not necessarily around the Declaration per se but these issues are hot political potatoes around co-governance and ideas of sharing authority around. The expert report [He Puapua] that was given to the Government to help it develop the national plan of action was described as 'separatist', and that sort of language was used around that plan. As I mentioned earlier, politically it's quite volatile.
3.18One question arising from the challenges New Zealand encountered in its attempts toimplement UNDRIP is whether greater public awareness of the Declaration and the Action Plan process would have resulted in quicker success. TheCommittee heard that there was a clear need for more knowledge about theDeclaration and what it is within communities.
3.19Drawing on several sources, the Waitangi Tribunal’s view of the Declaration, particularly in relation to how it impacts the interpretation of and adherence to the Treaty of Waitangi, has been summarised by EMRIP as follows:
The Waitangi Tribunal has indicated that the Declaration is ‘perhaps the most important international instrument ever for Māori people’ and carries ‘great moral and political force’, ‘valuable guidance on those issues [collective and individual rights in terms of culture, identity, education, health and so forth] and reflects in many ways the spirit of the principles of the Treaty of Waitangi’. Another Waitangi Tribunal report refers to the Declaration, as a ‘base standard’ and considered that, to the extent that Declaration rights may be recognised consistent with the jurisdiction of the Tribunal, the Tribunal should apply them. Most extensively, the Waitangi Tribunal has stated that the Crown ‘accepts that the UNDRIP articles are relevant to the interpretation of the principles of the Treaty. Because the New Zealand Government has now affirmed the Declaration, the obligations described in its articles are a circumstance we can take into account in assessing the Crown’s actions’.
Lessons for Australia
3.20The New Zealand approach, determined through negotiations between Indigenous peoples, human rights experts, and the Government, and from EMRIP’s advice, has primarily been a policy rather than legal model.
3.21Dr Watchirs OAM, President and Human Rights Commissioner, ACT Human Rights Commission, referenced the approach when advising how Australia might consider implementing UNDRIP, stating:
We consider administrative implementation could occur explicitly by directions from the Government to exercise agency functions consistently with the principles of UNDRIP, and I think this is the New Zealand approach.
3.22Given the calls for action in the Uluru Statement from the Heart (the Uluru Statement), including the establishment of a Makarrata Commission to oversee a process of agreement making, the intersection between constitutional recognition, treaty rights, and those principles set out in UNDRIP is relevant. The Committee heard about the benefits arising from greater awareness and incorporation of UNDRIP, as well as constitutional guarantees, in jointly leveraging the opportunities and commitments in the Treaty of Waitangi. Forexample, the Committee heard:
…Te Tiriti o Waitangi guarantees tino rangatiratanga—sovereignty or self‑determination—for Māori Iwi Chiefs and so on. That has never been realised. Te Tiriti o Waitangi is unusual. It is often thought by brothers and sisters overseas to be the answer; it's not that, because it has no constitutional force, although it is of constitutional value.
3.23Further, appearing for the Māori Council, Sir Taihakurei Durie KNZM, former Chief Judge of the Māori Land Court and Chairman of the Waitangi Tribunal, described the interaction between UNDRIP and the Treaty of Waitangi:
For us, the Declaration has been a most important source of principle with international standing. In that way, the Declaration has played an important role for us in developing policy for Māori in New Zealand. We also rely on the Treaty of Waitangi in this country, but it's a rather general document, and the Declaration has augmented the treaty with much more specificity.
3.24Similarly, the First Nations Portfolio at the Australian National University observed the historical difference between New Zealand (the Treaty of Waitangi) and Canada (the recognition of rights in the constitution since 1982 and historical treaties) with Australia. Leading it to pose a critical question for determining the next steps in Australia, specifically ‘with the limitations that have beset Australia’s legal and political history, how can it be strategically done in a way that allows the UNDRIP to be the hook?’
3.25There are also lessons for Australia in terms of inclusive approaches to engagement with First Peoples. For example, despite its statutory strength, the Māori Council was not included in negotiations with the New Zealand Government on the country’s Declaration Action Plan. When discussing this, Sir Taihakurei Durie KNZM noted:
I think that with Māori people we always strive to have an inclusive approach. So,the New Zealand Māori Council certainly does not believe that it’s the beginning and end of everything. There are several other groups that need to be heard as well, and we can actually thrive on diversity.
3.26This context is relevant for the Australian Government to consider how it will engage with First Nations people to determine the approach to implementing UNDRIP, and ensuring that approach adheres to Article 19 of the Declaration which provides that:
States shall consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
3.27Finally, the experience of Indigenous groups seeking the expertise of EMRIP to inform negotiations with government is a way to address the power imbalance prior to formal negotiations on the form of implementation. Dr Sheryl Lightfoot described the New Zealand country engagement of EMRIP as specifically focusing on how the Iwi leaders and New Zealand Human Rights Commission (the requesters) ‘work with government to co-develop a national plan of action to implement the Declaration’.
Canada
3.28The Committee heard evidence about the implementation of the Declaration by the Federal Government of Canada and in the Province of British Columbia (BC). These perspectives are particularly relevant to Australia’s context; given that Canada and Australia are both federations of former colonies with centralised national governments.
3.29As with Australia and New Zealand, Canada initially withheld its support for UNDRIP.
3.30To understand the Canadian and British Columbian context, it is important to note the following structures, which are described at a high-level below:
- In 1982, the Canadian Constitution was amended to include a new Section 35 titled ‘Rights of the Aboriginal Peoples of Canada’ which, among other things, recognises and affirms the existing Aboriginal and treaty rights.
- There are 70 Historic Treaties recognised in Canada, signed between 1701 and 1923, which have varying degrees of successful implementation.
- There are 26 Modern Treaties with Indigenous groups in Canada, which have been negotiated since 1975 following the Calder et al. v. Attorney-General of British Columbia case in the Supreme Court of Canada which recognised Indigenous rights for the first time.
- The British Columbia Treaty Commission is the independent facilitator for Modern Treaty and tripartite agreement negotiations. It ‘advocates for and facilitates the recognition and protection of First Nations’ rights and title, through the negotiation of Modern Treaties and tripartite agreements among the governments of Canada, British Columbia and First Nations in BC.’
- The Truth and Reconciliation Commission of Canada was established in 2007 and ran until 2015, as a truth-telling exercise for those impacted by the legacy of the Indian Residential Schools system, and to ‘facilitate reconciliation among former students, their families, their communities and all Canadians’.
Federal Government of Canada
3.31The Canadian Constitution recognises three distinct groups of Aboriginal peoples being Indian (or First Nations), Inuit, and Métis.
Approach to Implementation
3.32On 8 April 2008, the Canadian House of Commons, the lower house of the Canadian Federal Parliament, adopted a motion in support of UNDRIP and called on the Federal Government to 'fully implement the standards contained in [it]'.
3.33On 3 March 2010, the Governor General of Canada stated in a speech to the Houseof Commons that the Government would ‘take steps’ to endorse UNDRIP ‘inamanner fully consistent with Canada’s Constitution and laws’.
3.34On 12 November 2010, Canada announced its qualified support for UNDRIP, describing it as an ‘aspirational document’. The official statement detailed a range of ongoing concerns the Government held with respect to the text of the Declaration:
Although the Declaration is a non-legally binding document that does not reflect customary international law nor change Canadian laws, our endorsement gives us the opportunity to reiterate our commitment to continue working in partnership with Aboriginal peoples in creating a better Canada.
3.35In 2015, the final report of the Truth and Reconciliation Commission of Canada called on Federal, Provincial, and Territory Governments to adopt and implement UNDRIP. It further called on the Federal Government, jointly with Indigenous peoples, to develop a national plan and other measures to implement the goals of the Declaration.
3.36While a number of draft bills to implement UNDRIP had been in circulation dating back to2008, none gained mainstream support until 2016. On 21 April 2016 aprivate member’s bill for an Act to ensure that the laws of Canada are in harmony with UNDRIP was presented in the House of Commons by New Democratic Party member Mr Romeo Saganash MP, but over the three-year period did not pass both Houses of Parliament.
3.37In February 2017, the Prime Minister of Canada, the Hon Justin Trudeau PC MP, established a working group of ministers to review existing laws and policies related to Indigenous peoples.
3.38On 21 June 2021 the United Nations Declaration on the Rights of Indigenous PeoplesAct (Canada) (Canada’s UN Declaration Act) came into force. TheCanadian Government described the UN Declaration Act as follows:
This Act provides a roadmap for the Government of Canada and Indigenous peoples to work together to implement the Declaration based on lasting reconciliation, healing, and cooperative relations.
3.39The Committee heard from Mr Keith Smith, Director General of the UN Declaration Act Implementation Secretariat, at Canada’s Department of Justice, who said:
There was pretty broad consensus around the UN Declaration Act in parliament, but also amongst Indigenous peoples themselves, on the need to legislatively put in place a mechanism for the implementation of the Declaration. There were some disagreements about what that would look like at the end, that type of legislation. … There was a lot of outreach and engagement with Indigenous partners in terms of what the bill ultimately looked like. But I think there was pretty strong consensus on the need to pass the bill, if you will.
3.40The UN Declaration Act sets out binding requirements on Canada’s Federal Government to implement UNDRIP, including: ensuring the consistency of federal laws with the Declaration; developing an action plan to implement UNDRIP in consultation with First Nations peoples, Inuit, and the Métis Nation: and developing Annual Progress Reports to be submitted to Parliament.
3.41Ms Lisa Smith, Interim Advisor to the President, Native Women’s Association of Canada (NWAC) described the Indigenous-led consultations on developing an action plan as follows:
So, on 10 December 2021, the Minister of Justice and Attorney General of Canada announced a new consultation process with Indigenous groups which opened new funding to support the engagement process. In addition, the Federal Government has started taking measures to ensure that pre-existing laws are consistent with the Declaration. Also, in the 2022 federal budget here in Canada, the Government of Canada committed to implementing UNDRIP and proposed to provide $65.8million over five years, starting in 2022–23, and $11million ongoing to Justice Canada to work with Indigenous peoples on an action plan. So NWAC was given project funding to provide a perspective from Indigenous women, girls and gender-diverse people on the draft action plan. Now NWAC is advocating for the final action plan to achieve measurable goals and feasible time frames, to allocate funding and to ensure that there is consideration for some specific needs of Indigenous women, girls and gender-diverse people.
3.42The first Annual Progress Report was tabled in Parliament on 21 June 2022 and was referred to the relevant committee in each House of Parliament. On 20March 2023 the Canadian Government released a Draft Action Plan for consultation.
3.43On 20 June 2023, the final Canadian UNDRIP Action Plan 2023-2028 was released, which is a ‘starting point for ongoing consultation and cooperation with Indigenous peoples on UN Declaration implementation’ and will invoke both new and existing mechanisms to make progress.
3.44The measures that will be taken are set out across five chapters:
1Shared Priorities
2First Nations Priorities
3Inuit Priorities
4Métis Priorities, and
5Indigenous Modern Treaty Partner Priorities.
3.45As with other countries’ experiences of implementing UNDRIP, Canada experienced a degree of struggle around public education on, and confusion about, the Declaration. An example of this, specifically around the concept of free, prior and informed consent (which is referred to in UNDRIP Articles 10,11,19, and 28), was given to the Committee by Ms Lisa Smith from the NWAC, who stated that:
When we were advocating for UNDRIP implementation, there were myths that stood in the way as obstacles. For example, in the Declaration, there is ‘free, prior and informed consent’ and there were a lot of myths surrounding that: ‘What does that look like?’ or ‘Oh, my goodness, resource development is going to be obstructed now,’ and that sort of thing. There's a lot to ‘free, prior and informed consent’ and I love talking about it; but, essentially, at the end of the day, it just means that Indigenous peoples, like anyone else in the world, can say ‘yes’, ‘no’ or ‘yes, with conditions’ when it comes to their land.
3.46While the Committee heard broadly positive feedback on the consultation process for the Draft Action Plan, Canadian Government witnesses did acknowledge challenges relating to participation, listening, expectation management, and scope setting had arisen in the course of consultations.
3.47At its hearing on 10 February 2023, the Committee heard that references to UNDRIP in existing Canadian legislation had already contributed to social and economic benefits for Indigenous Canadians. Ms Koren Marriott, Acting Director and General Counsel, Legislative and International Policy Unit, Aboriginal Law Centre, Department of Justice of Canada put to the Committee that:
…[A] number of pieces of legislation that refer to the Declaration, some of which address socio-economic issues—things like Indigenous languages, child and family services and some of those specific sectors that the Declaration has referenced, as part of the context of those pieces of specific legislation—all of those, together, help contribute to a variety of social and economic benefits.
3.48On the potential of other laws to be amended for consistency with UNDRIP, as is required by section 5 of the Canada’s UN Declaration Act, Ms Marriot said:
We expect that some federal laws will change over time. If any inconsistencies are identified, they will go through the normal parliamentary and policy development processes with the involvement of Indigenous peoples, because we now have a statutory requirement to consult and cooperate in order to ensure consistency; but then they'll go to parliament and parliament will choose to enact the law or not, as the case may be, in those procedures.
3.49The Committee heard from several witnesses throughout its inquiry who put the view that the cultural shift in Canada which enabled the Declaration to be implemented was a result of the findings of the Truth and Reconciliation Commission of Canada (TRC). This parallel process helped the public understand the need to grapple with the legacies of colonisation. On the context around the early steps of implementation, Ms Smith stated:
…the Truth and Reconciliation Commission of Canada was happening and that brought to light, for the community and the public, a lot of information about the atrocities that had happened at the hands of the church and state in residential schools. So we saw the public learn the truth about what the colonial powers had done to Indigenous peoples and children and then demand action from the state. So, in a way, there was a kind of perfect storm of public pressure and truth coming to light, with reconciliation at the end of the day then being very important to the public as well as, of course, Indigenous advocates.
3.50Further, the Canadian witnesses shared evidence about the relationship between Historic and Modern Treaty arrangements with UNDRIP. On that topic the Committee heard from Ms Marriott that:
The Declaration itself calls on states to recognise and observe treaties, agreement and instructive arrangements during the development of the [UNDRIP] Act. That was one of the key principles that Indigenous peoples identified as being particularly important in Canada, because we have historic treaties and Modern Treaties.
3.51Mr Smith provided his view on Modern Treaties, in particular putting that:
…Modern Treaties are really a reflection of the principles that are set out in the UN Declaration itself. They’re almost a manifestation of it, if you will. There are ongoing voluntary negotiations that are taking place…They are informed by the UN Declaration and the rights set out in it as well. They are not mutually exclusive. In fact, they are mutually reinforcing, I would suggest. I would point out as well that Canada has a number of historic treaties across the country and those are also to be recognised and observed, and are certainly part of the fabric of Canada.
Province of British Columbia
3.52The Province of British Columbia is Canada’s westernmost sub-national jurisdiction (a Province being comparable to a State in Australia). The modern British Columbia has been the home to more than 200distinct First Nations groups, each with its own unique traditions, history, and laws, for thousands of years.
Approach to Implementation
3.53On 28 November 2019, BC became the first North American jurisdiction to support the implementation of UNDRIP by passing the Declaration on the Rights of Indigenous Peoples Act (British Columbia) (the BC Declaration Act) into law.
3.54The BC Declaration Act was developed following over a decade of discussion on draft pieces of legislation to implement UNDRIP at a federal level. At a hearing on 31March 2023, Ms Jessica Wood (SiSityaawks), Assistant Deputy Minister, BCDeclaration Act Secretariat, told the Committee how the Province came to implement UNDRIP, stating:
We've had the benefit of a piece of legislation in various forms circulating federally since 2008 that is substantially similar to what you see introduced here. The Federal Government had introduced a bill that was unsuccessful, so we thought we would be in their wake. The Government here made the decision in the Province of BC to continue on with our version of that bill and to actually go first. With them being unsuccessful and our having a couple of different tools, like we said, we've adopted in track, we're actually in our state, our province, ahead of the other states and we're first, ahead of the nation.
3.55As part of consultations on the BC Declaration Act the British Columbian Government engaged in consensus building with First Nations political leaders, major political and economic leaders, and municipalities. They spoke about the impacts of having no legislative framework to affirm UNDRIP rights.
3.56MsWood advised the Committee on the co-design process, including how Indigenous people were brought into the cabinet-in-confidence process to ensure negotiations were genuinely based on collaborative practices:
We worked together on co-developing, in our parliamentary process, our request for decision, our request for legislation, our three-column documents or instructions to our drafters as well as on the consultation drafts. And then we did a robust non-disclosure agreement process to maintain cabinet confidence where we had over 175 non-disclosure agreements. We went directly to major leaders in nations so that they could preview the bill before it was tabled in the House. It was unprecedented. And that's how we were able to, after 23 hours of community debate, to also have universal support from all sides of the House.
3.57The BC Declaration Act affirmed the application of UNDRIP to the laws of BritishColumbia, required the province to develop an implementation plan in consultation with Indigenous peoples (a five-year action plan was released on 7April2022), and authorised the Government to enter into agreements with Indigenous bodies to jointly make certain statutory decisions.
3.58The BC Declaration Act includes shared decision-making and consent agreement provisions as a mechanism to deal with obtaining free, prior and informed consent (FPIC) in certain contexts. On how consent is dealt with the Hon Murray Rankin KC MLA, British Columbia’s Minister for Indigenous Relations and Reconciliation, stated:
I would agree that it is one of the things that was probably the most hotly contested aspect of our commitment. Indeed, the federal bill, which does not contain what I'm about to describe, for those that are following sections 6 and 7 of our Act, the Declaration Act, talks about a variety of consent-seeking agreements that are possible. Section 7 contemplates either a consent based agreement by which the [First] Nation would have to provide its consent before proceeding. Another is joint decision-making whereby the statutory decision-maker, usually a provincial official of some sort, is joined with the decision-making by the individual [First] Nation. And of course, that, if you think about it, often will require, but not always, the legislation by which that decision-maker, maybe in a mining context, you can think of all the resource regulation, or indeed in the social circles such as in children and family matters, is following the law, and we have to make space for that in order to have it be joint or consent based. Some kind of amendment is often to be sought.
3.59In addition to implementing UNDRIP by statute, British Columbia continues to facilitate and engage in active Modern Treaty negotiations with First Nations. TheBritish Columbia Treaty Commission is an independent body tasked with overseeing treaty negotiations within the Province. These negotiations occur in tandem with the implementation of both UNDRIP and findings from the Canadian truth-telling process.
3.60MsCeleste Haldane, ChiefCommissioner, British Columbia Treaty Commission, told the Committee that:
We assist the parties to implement the United Nations Declaration on the Rights of Indigenous Peoples, the Truth and Reconciliation Commission of Canada's 94Calls to Action and the recognition of First Nations title and rights.
3.61The Committee heard that consultations on legislating a requirement for there to be an UNDRIP action plan were considered insufficient by some Treaty Nations. However, evidence was given to the Committee that following this, consultations on the content of the Action Plan had been more satisfactory. At a hearing on 10February2023, Mr Mark Smith, General Counsel and Director of Process at theBritish Columbia Treaty Commission told the Committee that:
…when First Nations were being consulted [on the legislation], like all consultations it wasn't perfect and there was a bit of an oversight in that the Modern Treaty Nations in the province were not adequately consulted, if consulted at all, around the legislation. To the credit of the Provincial Government, they fixed that when it came to the action plan and had specific consultation and engagement with the Modern Treaty Nations in British Columbia—there's eight of them—and there's a specific section within that action plan that talks about the relationship with the Modern Treaty Nations.
3.62The BC Declaration Act Action Plan required under section 4 of the Province’s Declaration Act was released on 30 March 2022 and sets out specific actions tobeaccomplished between 2022–27. The four priority areas set out in the BC Declaration Act Action Plan are:
1self-determination and inherent right of self-government
2title and rights of Indigenous peoples
3ending Indigenous-specific racism and discrimination, and
4social, cultural, and economic well-being.
3.63At its hearing on 10 February 2023, the Committee heard that the BC’s adoption of UNDRIP has had an unparalleled positive influence on the speed of reconciliation and change within the jurisdiction. Mr Smith offered his perspective that:
…having UNDRIP in Canada has had quicker progress, more progress, in terms of change with the relationship with Indigenous peoples here. Ithink our constitution, from 1982, has a specific section, section 35, around Aboriginal rights. Although that's a very positive part of our constitution, would say things have moved much quicker since the adoption of the UN Declaration and in the legislation in Canada and in British Columbia. I think it's a valuable mechanism to advance rights and keep everyone focused on these important issues.
3.64Indeed, the speed of progress in British Columbia since the implementation of UNDRIP became a theme in the evidence received by the Committee. Evidence was provided about positive changes relating to the review and amendment of other laws to accord with the Declaration,reducing barriers and enabling more progress on Aboriginal title determinations, and progress on treaty negotiations since the BC Declaration Act’s passage. The Committee also received evidence on the effect Modern Treaties, as constitutional documents, have had on accelerating legislative reform in British Columbia.
3.65One key distinction between the Australian and Canadian contexts is the longstanding history Canada and its Provinces have in working toward, and under the conditions of, treaties. The outcomes of British Columbia’s Modern Treaty Nations provide an example of how UNDRIP can reinforce treaty negotiations. The British Columbian Government noted:
Of course, our first Modern Treaties were done before the UN Declaration was even endorsed by Canada. So a lot of that important work was done before Canada endorsed the UN Declaration, and, again, it's significant work—that these Modern Treaties are sharing sovereignty between the Crown and the Indigenous peoples. And these treaties have elements in them that are very good examples of FPIC. They may not refer to FPIC, but consent is built into the treaties, and now the new treaties are more directly referencing FPIC and the UN Declaration.
3.66On the success and socioeconomic impact of Modern Treaties, the Committee heard:
A lot of successes are coming out of the Modern Treaty Nations. They're seeing huge socioeconomic benefit to treaties and agreements, which, of course, are very much related to the rights that are enshrined in the Declaration. In the work that we're doing, we're seeing Nations coming back to table. We're getting past some stalled issues. We're seeing movement in Government on both sides, Federal and Provincial. We've seen a lot of progress since the Declaration and certainly since the two acts.
3.67The adoption of UNDRIP in British Columba has also paved the way for the progressive approach to the challenging problem of child and family service delivery to Indigenous people. At its hearing on 31 March 2023, the Committee was informed of British Columbia’s approach of entering into consent agreements with First Nations (the groups specifically, as opposed to organisations) and vacating its jurisdiction over children in care. Minister Rankin KC MLA stated that:
It is an absolute sea change. First Nations people have, as I know Australia does too, a remarkable number of children in care of one sort or another who want to go home and be reunited with their family yet they have been seeking forever to have that jurisdiction. Of course, we are concerned, as they are concerned, about the best interests of the child and so forth. We certainly want to ensure that they have a cultural component in their upbringing, so confirming they have that jurisdiction, not in a delegated model but in a recognition model, is really central to the future of those communities. They have reasserted their jurisdiction to look after their own children. It's a real fundamental sea change, as I said.
Lessons for Australia
3.68An important component of the British Columbian and Canadian experiences was the complementary relationship between truth telling, treaty-making and constitutional recognition over many decades, interconnected with UNDRIP implementation.
3.69While the Truth and Reconciliation Commission currently lacks a national equivalent in Australia, there are similarities with the Yoorrook Justice Commission in Victoria, which has a broader scope and terms of reference. Further, the Uluru Statement calls for a Makarrata Commission to supervise truth-telling and agreement-making, and it is therefore useful to consider how progress on these three elements may assist in the successful efforts towards reconciliation.
3.70The Canadian experience shows a scenario where the political will or mandate to implement UNDRIP developed over time, and most significantly following the findings from the Canadian Truth and Reconciliation Commission. As outlined earlier, MsSmith, Interim Adviser to the President, Native Women’s Association of Canada, described a ‘perfect storm’ where this Commission reported on atrocities that had occurred in Indigenous Residential Schools which led to a report for the Federal, Provincial and Territorial Governments to implement UNDRIP.
3.71Consideration of how public education and awareness connect to truth-telling as part of implementing both the Uluru Statement from the Heart and UNDRIP should be an important consideration for the Australian Government.
3.72Further, the experiences in Canada are relevant to how the Declaration has been adopted at the Federal, Provincial, and local level. When asked about the interaction between the Federal UNDRIP Act in requiring Provinces to take certain actions, MsMarriott noted the ‘UN Declaration Act does not bind Provinces’. While it is effective at requiring action at the Federal level, it is important to consider the limitations of a legislative action plan at the Commonwealth level in Australia in relation to influencing policy areas in the jurisdiction of States and Territories, if done in isolation.
3.73In addition to the Federal and Provincial adoption of UNDRIP, the Committee heard that the City of Vancouver is considering how it can implement UNDRIP at the local level, making it the first municipality to consider such an action. In 2021 the City of Vancouver established an UNDRIP Taskforce in partnership with First Nations representatives to consider options for implementation. There may be further lessons for Australia to consider how the more localised approach to implementation could be considered.
Finland
3.74The Indigenous people of Finland are the Sámi.
3.75To understand the Finnish experience of implementing UNDRIP, it is important to understand the following structures:
- The Sámi Parliament in Finland was established in 1985 as an ’independent legal entity of public law‘ which comprises 21 members to represent the Sámipeople of Finland.
- Sámi are recognised in the Finland Constitution, as well as their right to maintain and develop their own language and culture.
- A Sámi Truth and Reconciliation Commission has commenced and is ongoing in Finland.
Approach to implementation
3.76In 1973, the Sámi people established the Sámi Delegation which acted as their own representative institution to the Finnish Government. In 1985, the Finnish Government and the Sámi delegation reached an agreement to transform the Sámi delegation into the Sámi Parliament.
3.77The 21 members and 4 deputies of the Sámi Parliament represent different municipalities and language groups. These members are elected from a single Sámi electoral roll. However, to ensure regional representation, each of the four municipalities of the Sámi homeland must have at least three members each, and one deputy.
3.78Mr Juuso, the Sámi Parliament President, noted the benefits of the Sámi Parliament in bringing together diverse views and perspectives from the various regions. He stated:
We have three different languages spoken here on the Finnish side; we have different livelihood structures; we have reindeer herding; Sámi have a fishing background; and there are other kinds of groups of people. But we have identified the need to work together as one people and have decided to do so.
…
But in our context, of course, our people have different kinds of opinions, and to have a platform where we can measure what kinds of views are supported in our people themselves is quite important in trying to define what the collective view of the Sámi is.
3.79In addition to the Sámi Parliament providing advice directly to the Finnish Government, it also works with the Nordic Sámi Convention to promote and advocate for the shared interests among the Sámi in Finland, Norway and Sweden.
3.80In 1995, the Finnish Government recognised the Sámi people in its constitution and enacted legislation which established the Sámi Parliament as the legal body representing the Sámi, which began operation in 1996. The Sámi Parliament provides non-binding advice to the Finnish Government.
3.81Finland voted to adopt UNDRIP in 2007, and recommitted to achieving the objectives of UNDRIP in 2014. However, it has not implemented the Declaration in legislation. Since 2007, the Sámi Parliament has negotiated with the Finnish Government to adopt some aspects of UNDRIP, which apply to policy matters such as education, livelihoods, land rights and healthcare.
3.82The Committee heard from the Director General of the Department for Democracy and Public Law in Finland that they consider it ‘good practice to always have negotiations when the Sámi Parliament finds it important’ to do so. For example, consultation between the Finnish Government and the Sámi Parliament has resulted in the production of school materials that provide cultural context and preserve Sámilanguage.
3.83The Committee heard from the Finnish witnesses about how UNDRIP was adopted in more informal or iterative ways across legislation, policies and through the existence of the Sámi Parliament. For example, the Director General for the Department for Democracy and Public Law in Finland said UNDRIP has had indirect influence on how the Finnish Government operates, as all government agencies have been provided advice (in collaboration with the Sámi Parliament) on guidelines for consulting and negotiating with the Sámi people within the spirit of UNDRIP. Similarly, UNDRIP is described as a ‘lens through which we interpret our current legislation’.
3.84The Sámi Parliament has proposed to the Finnish Government collaboration to develop a National Action Plan to fully implement UNDRIP, however, this has not occurred to date.
3.85The President of the Sámi Parliament told the Committee that the content of UNDRIP has been a crucial tool for the UN Human Rights Committee for interpreting and implementing the International Covenant on Civil and Political Rights (ICCPR).
Lessons for Australia
3.86Throughout the inquiry, there were many parallels and lessons from the experience of the Sámi Parliament in relation to the then proposed Voice to Parliament and Executive Government. Like the Sámi Parliament, the proposed Voice was intended to make non-binding representations to the Parliament and Executive Government on matters that affect Indigenous peoples. It was intended to bring together the perspectives of Indigenous people from across the country, including regionally, to ensure they are heard. As noted in this Report, the proposed amendment to the Constitution was put to referendum on 14October 2023 and was not supported by the Australian electors. However, the experience of a Sámi Parliament or a representative body to provide advice to policymakers remains a relevant consideration for Australia, even if not enshrined in the Constitution.
3.87When articulating the structural underpinnings of the Sámi Parliament, Mr Juuso, President of the Sámi Parliament Finland, stated ‘the provisions of the basic structure of the linguistic and cultural autonomy of the Sámi are laid down in the [SámiParliament]Act (Finland); that entered into force in 1996’. However,as outlined earlier, iterations of a Sámi representative body existed prior to this legislation and constitutional recognition.
3.88Further, the Sámi Parliament’s enduring existence was strengthened through the constitutional recognition of Sámi people which gives rights for ‘the Sámi to maintain and develop our language and culture’ and to ‘self-government’. While this amendment occurred prior to the Declaration being adopted by the UN, the combination of constitutional recognition of these rights, the existence of the Sámi Parliament to negotiate on policy matters, and the UNDRIP Articles being adopted morally and through policy are significant and relevant to Australia.
Norway
3.89The Indigenous people of Norway are the Sámi.
3.90To understand the context of Norway, it is important to note the following structures:
- A Sámi Parliament (or Sámediggi) was established in October 1989, which comprises 39 members, who represent Sámi living in Norway, and the Norwegian Government is required ‘to consult with officially elected constituents [of the Sámi Parliament] on political issues relevant to the Sámi people’.
- Section 108 of the Norwegian Constitution guarantees certain rights by stating the government ‘shall create conditions enabling the Sámi people to preserve and develop its language, culture and way of life’.
- The Norway Truth and Reconciliation Commission conducted an inquiry between 2018 and 2023 into the process of 'Norwegianisation’ or assimilation and tabled its report in June 2023.
Approach to implementation
3.91The Norwegian Government has a long history of utilising established laws and mechanisms to protect the rights of the Indigenous people of Norway, the Sámi. ASámi Parliament (or Sámediggi) was established in October 1989.
3.92The Sámediggi does not have legislative powers but can make regulatory decisions on issues relating to the Sámi people, such as the Sámi schoolcurriculum and some land rights regulations covered under the FinnmarkAct(Norway). TheFinnmark Act is an Act relating to legal relations and management of land and natural resources in Finnmark, a region in the country’s north.
3.93Norway was the first country to ratify International Labour Organization (ILO) 169 in 1990, which meant that it undertook a responsibility to consult the Sámi under Article 6 of that convention.
3.94During negotiations on the Finnmark Act the Norwegian Government and the Sámediggi agreed upon procedures for consultations between state authorities and the Sámediggi. The Norwegian Parliament subsequently approved those procedures in 2005, enshrining them as the normative guidelines that regulate Norway's consultation obligations contained in Article 6 of ILO 169.
3.95The Australian Human Rights Commission noted that the legislation:
…ensures that new measures, legal provisions and consultations procedures are conducted in accordance with the Sámi peoples’ right to participate and have a tangible influence in the decision-making procedures that directly affect their interests.
3.96Norway endorsed the adoption of UNDRIP in 2007. In the same year the Sámi presented a draft consultation Act to the Norwegian Government. Thedraft Act proposed that the Norwegian Government consult the Sámediggi and other Sámi rights holders to gain their conditional free, prior, and informed consent for measures that are particularly important for Sámi culture.
3.97In the Nesseby Case, concerning a dispute between Sámi and government over the management of land and renewable natural resources in north-east Finnmark, the Supreme Court of Norway noted that UNDRIP was neither legally binding nor of direct significance to the case, but did acknowledge the general importance of UNDRIP for its reflection of international law principles.
3.98The Committee heard that when UNDRIP was adopted by the General Assembly it was the Norwegian Government’s view that UNDRIP had already been implemented in Norway as a result of previous undertakings, such as the ratification of the ILO 169 convention and the Finnmark Act. Mr Bjørn Megard, Director General, Department of Indigenous and National Minority Affairs, put the view that the existing international rights instruments, such as ILO 169, are ‘often in agreement’ with UNDRIP, potentially rendering it unnecessary for the Norwegian Government to rely on UNDRIP alone to inform legislative change.
3.99At its hearing on 31 March 2023, the Committee heard from the President of the Sámi Parliament of Norway that the establishment of the Sámediggi in 1989 has encouraged the Norwegian Government and the Sámi people to consult with each other, and to ‘find good faith solutions’. Director General Megard also told the Committee that consultations between the Norwegian Government and the Sámediggi have led to decisions being ‘better, more informed, and then easier to implement’.
3.100The right to free, prior and informed consent was raised as an ongoing issue in Norway, with the President of the Sámediggi telling this Committee that ‘free, prior, and informed consent…is one of the most challenging aspects we have with implementing the UNDRIP’. One example provided to the Committee of FPIC being in doubt was a wind power plant recently established on the grazing land used by the Fosen Sámi.
3.101Despite the iterative approach to implementing UNDRIP, and the formalisation of both ILO 169 and the Sámi Parliament the President of the Sámediggi expressed a desire for an action plan to be developed regarding the full implementation of UNDRIP. An action plan with the Norwegian government could increase knowledge and acceptance of the Sámi people in Norway, and the prevention of human rights abuses.
3.102While FPIC and self-determination were identified as areas of continuing development, the establishment of the Sámediggi has provided opportunities for the Sámi people living in Norway to confer with the Norwegian Government, and to explore solutions to issues affecting the Sámi.
Lessons for Australia
3.103The powers of the Sámediggi in Norway have evolved and iterated over time since it was first established, with several powers being added to its original capacity to provide advice on any topic it considered to be of interest. Many of these changes have been in response to international developments, such as ILO 169 and UNDRIP, and to the general public awareness and understanding of Indigenous rights. Thisiterative approach is a useful consideration for Australia’s efforts regarding UNDRIP.
3.104Further, the Norwegian Government and President of the Sámediggi talked about the complementary relationship between legislative forces of enacting ILO 169, with the moral force and power of UNDRIP, co-existing with rights in the Sámi Parliament Act (Norway).
3.105It provides an interesting context for Australia to consider how existing UN treaties or covenants, that have previously been used to drive policy or legislative reform for Indigenous peoples, may need to be reconsidered as part of implementing UNDRIP. The challenges and balance of relying on previous steps forward, as opposed to shifting towards UNDRIP, were discussed:
Whenever there is a different instrument, a legally binding power, we refer to thatinstead. That is often ILO convention 169 and ICCPR article 37, which are oftenmore powerful. That is also implemented in Norwegian law at a quasi‑constitutional level, so it has more legal power. We don't actually often refer to the UNDRIP but to the older instruments. They are often in agreement. It's not the UNDRIP that is driving it. It's a more recent development.
3.106When asked about the challenges of implementation, the Norwegian Government again talked about the importance of public education and awareness being critical, but did not provide advice on government-led initiatives to support this.
3.107Further, in regard to the iterative development of powers and understanding of UNDRIP, the President of Sámediggi noted she thought additional powers were needed and referenced the upcoming report of the Truth and Reconciliation Commission. The Commission inquired into Norwegianisation and assimilation, and may have similar effects to the uptake of UNDRIP implementation, particularly given the weight placed on ILO 169 in Norway.
3.108The Committee notes that each country examined has adopted a different approach to implementing UNDRIP in ways that reflect the aspirations of Indigenous peoples and the unique political circumstances in that country. Broadly, this has included legislative change, policy change, the adoption of co-design principles or other means by parliaments or governments to enhance engagement with Indigenous peoples, or the transfer of some statutory decision-making authority to Indigenous groups.
3.109The Committee acknowledges that there is no perfect or ‘right’ approach to implementing UNDRIP internationally, and that the countries implementing UNDRIP are experiencing both successes and challenges.
3.110The implementation of UNDRIP was recognised by witnesses as an ongoing, long‑term process to respond to, and contemplate, changes to arrangements between governments and Indigenous peoples, to allow Indigenous peoples to participate and carry greater management control and responsibility over their lives. The Committee notes that the realisation of the implementation of UNDRIP will be an iterative and enduring process.
3.111Nevertheless, the Committee considers that the approach in any given country will be stronger where Indigenous peoples are deeply engaged in the process; including the early stages of determining the way forward to improve adherence to UNDRIP. This invokes the need to consider the structural and systemic participation of Aboriginal and Torres Strait Islander peoples in the implementation of UNDRIP, in a manner that is respectful of UNDRIP’s commitments, such as self-determination.
3.112The Committee notes that in Australia, the Commonwealth, States and Territories all play a role in relation to policies and programs for First Nations peoples, particularly following the 1967 referendum and the addition of section 51(26) to the Australian Constitution. Therefore, it will be important for efforts to implement UNDRIP to have the cooperation and collaboration of States and Territories to be successful. On this note, the Canadian intergovernmental experience is particularly informative and relevant.
3.113The Committee observed that where progress was being made on implementing UNDRIP, it coincided with other activities, such as truth-telling processes, building on recognition, giving new life to modern and historic treaties, or flowing from the advocacy of representative Indigenous bodies.
3.114The Committee notes the relationship between parallel processes and the ability for these to co-exist in a manner that builds public awareness and understanding, and supports iterative progress towards greater national cohesion and unity. On this, the Committee notes the implementation of the Uluru Statement from the Heart could support the application of certain rights in UNDRIP.
3.115The Committee notes that the differing approaches to implementing the Declaration in the jurisdictions considered have resulted in UNDRIP being interpreted differently by nation states. The Committee considers the approach adopted in Canada and proposed in New Zealand through National Action Plans, as recommended by UN guidance bodies, to be of relevance to the Australian context. On this point, the Committee notes that it may be appropriate for the government or another entity to invite EMRIP for a country visit to provide expert advice on processes best adopted in the Australian context.
3.116The Committee recognises the general lack of understanding and limited public awareness of UNDRIP in Australia, as well as its relationship with United Nations human rights covenants and instruments. The Committee notes the unique fact that UNDRIP recognises collective rights for Indigenous peoples and does so particularly in response to the previous international instruments which were less focused on such rights.
3.117The Committee notes that there is no quick approach to implementing UNDRIP. Successful implementation requires coordination among all levels of government, as well as a national strategy of education and anongoing commitment to respecting the United Nations’ international standards for the best-practice human rights enjoyment for all citizens.