Overview of UNDRIP and critical analysis of Voice and UNDRIP Bill
Megan Davis
05.05.25
This post is part of a series providing a detailed and critical examination of a number of proposals directed at giving effect to the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in the Australian context.
In this post, I will do three things. First, I am going to set out the history of the UN Declaration on the Rights of Indigenous People (DRIP). Second, I will explain how the Voice was an implementation of the political participation elements of the DRIP. Third, I’ll conclude with some with some cautionary words on the other DRIP proposals that have emerged after the Voice.
The Genesis of the DRIP
It is important to keep the genesis of the DRIP in mind, as people tend to talk about the Declaration a lot, but people don’t understand where it has come from and what it constitutes.
The UN grew out of post-WWI and WWII consensus, where the international human rights system was developed off the back of the UN Charter and the UN System, which is primarily about the maintenance of peace and security in the world. People didn’t want to repeat what had happened in the lead up to the world wars. The two pillars then of the UN Charter are human rights and trade. Because trade disputes, by and large, have driven world conflict, and certainly did in WWI and WWII. And then what we found in particular in WWII, was that there weren’t enough agreed international rules in relation to how States treat people living within their borders, citizens and non-citizens. So this framework grew out of that international consensus, the international human rights law system and international trade system, predicated on the twin pillar principles of international law, or international ‘rule of law’: non-discrimination and equality before the law.
Indigenous Peoples rights weren’t contained within the initial normative framework, because that post-WWII consensus was about individual rights, it wasn’t a collective rights framework. It wasn’t until the dismantling of protection-style and racial-segregation frameworks around the world that Indigenous Peoples were able to take advantage of education and higher education, and they started to look to supra-national institutions like the UN to implement things like treaties that had been recognised in their borders, and also to find some sort of accountability, or scrutiny of state conduct and treatment of Indigenous peoples outside of the domestic framework which often did not respond to Indigenous peoples rights.
A lot of that work came as a result of the framework in the UN Declaration on Human Rights and the Convention on the Elimination of Racial Discrimination, which was adopted by Prime Minister Gough Whitlam in its totality, and it has been one of the most emancipatory pieces of legislation for Indigenous Peoples.
That activism in the 60s and 70s led the UN to do what it does best when it stumbles upon an issue it doesn’t know much about, and in this case they didn’t know much about Indigenous Peoples, and that is to set up a mechanism by which they could do some fact finding around the world and to understand what it was that Indigenous Peoples were bringing to the UN and asking for protection of. That led to the production by a diplomat called Martinez Cobo of a comprehensive report looking into the issues that Indigenous Peoples were raising, the ways their rights have been deprived or subjugated, or recognised in a positive way in many jurisdictions. The Cobo Report was the first initiative, and it is really important to understand the rights contained in the UNDRIP.
Once that report was handed down, the UN set up a sub-committee of the Commission on Human Rights, it was known as the Working Group on Indigenous Populations (WGIP), it sat at the bottom of the UN framework. It did really important pioneering work in international human rights law and international law in relation to Indigenous Peoples rights.
The WGIP had a unique twin mandate: the first mandate was a review of developments, and the second was a standard setting mandate.
The review of developments was an important aspect of its mandate (that I don’t think the UN would give any working group today), and it enabled Indigenous Peoples to go the UN and give the UN up to date, in real time, reports and stories and explanations of things that were going on in a particular country. This allowed Indigenous Peoples to speak to many things. Draconian legislation. Discriminatory legislation. And other developments.
What the Working Group did was to respond to the review of developments using the second element, the standing setting mandate. Standing setting mandates are really rare in the UN system. Standard setting is effectively law making in a UN sense. You are creating standards that the globe, nation states, have to abide by in relation to Indigenous rights. And so the WGIP started drafting a Declaration on the Rights of Indigenous Peoples.
Each element of the DRIP as we know it today came from a really specific example or story. The DRIP is an excellent example of legal story telling. It provides to the world an understanding of rights that are actually infringed. And it also has very important normative ideas of the things that states can do that are positive, based in real experiences. And so imbued in the Declaration are a lot of great Australian innovations, many that we no longer have.
One example is the importance of community controlled organisations. In Australia we still have a community controlled sector, but back in those days they had greater autonomy and were not dictated to as much by the regulator, so today a lot of community controlled organisations feel overwhelmed by their obligations to ASIC or ORIC.
The second thing that was innovative, was the Aboriginal and Torres Strait Islander Commission (ATSIC). The idea you could set up a democratically elected mechanism that allowed the government to consult democratically elected people from communities, on laws and policies that impact upon them.
The notion of Free, Prior and Informed Consent (FPIC) in the Declaration was also very much influenced by the Aboriginal Land Rights Act (NT) and the spectrum of consultation it requires in relation to mining.
So that’s where the UNDRIP emerged. From almost 30 years of work. It was the first structure that applied collectively to group rights. It is not an individual rights mechanism. Indigenous peoples can only really practice particular fundamental human rights collectively with others. It’s an important point to keep in mind about the DRIP.
The draft Declaration left Geneva and headed over the New York, where the General Assembly would decide whether it would be adopted. It was put off for a year, and sent to the UN third committee, that does all the human rights work of the Assembly, because of some objections by African states of some of the collective rights recognition contained in there. That was resolved, and it eventually went to the General Assembly and it was endorsed.
It is a General Assembly resolution. It is a declaration of global opinion but it is not binding.
There are two ways that international law is incorporated into domestic legal systems. One is broadly the ‘monist’ approach, which is where all international law becomes part of your domestic legal system automatically. There are a number of examples of that internationally, including in Nordic states. A more common approach particularly in Westminster systems including Australia, is the ‘dualist’ approach, there needs to be some kind of transformative act of the Parliament for that international law to be a part of your domestic legislation.
At first Australia objected to the DRIP, but it was finally endorsed under Prime Minister Kevin Rudd and Minister Jenny Macklin in 2009.
But in Australia, the DRIP is not binding. So the debate has been, what do you do with DRIP?
Constitutional recognition, DRIP and the Voice
For well over a decade there was a constitutional recognition process in Australia, starting not long after the DRIP was endorsed, back in 2011, up until the referendum in 2023.
The first iteration of the constitutional recognition process, which was the Expert Panel in Constitutional Recognition of Indigenous Australians, set up by Prime Minister Julia Gillard, did think about the DRIP. But its primary reform recommendation was the constitutional entrenchment of a non-discrimination clause. So that, in effect, the Racial Discrimination Act would apply to the federal government. That fell down for all sorts of reasons. Ultimately it was decided it didn’t fit Australia’s political temperament, because as we are a rights-reluctant country.
Eventually, we went through all the processes that led to the Referendum Council, and the consultations with First Nations people, and those consultations were done in accordance with the DRIP. The Aboriginal and Torres Strait Islander people in the Regional Dialogues went through a complex deliberative process, to answer the Australian government’s question: what does meaningful constitutional recognition mean to you.
The majority of people said that a Voice, the right to political participation as recognised in Articles 18 and 19 of the Declaration, was important to them. Articles 18 and 19 provide:
Article 18
Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.
Article 19
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.
This is important to keep in mind when assessing the DRIP, and how you implement it in domestic law, because of course the constitutionalised but non-binding right to have a say in laws and policies was the primary response of First Nations people participating in the Regional Dialogues. Not things like non-discrimination and treaty. I make that point because since very early on in Australia’s history, First Nations people have always been very pragmatic about trying to forge out ways in which they can participate in Australian democracy and the way they can participate in decision-making in Australian democracy. This is an important point.
Article 3 of the UNDRIP provides:
Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
But Article 3 and the DRIP is a framework that sits under the State’s structure. It is subjugated to the State’s law, there is no ‘separatism’ (even though that was suggested during the referendum campaign that there were ‘separatist’ objectives by organisations like Advance). But separatism is not part of the DRIP’s framework. Article 46 tells us that there is nothing in the Declaration that can happen or can be done to compromise the territorial integrity of the State. So Article 3, self-determination, sits within the State and is subordinate to the State. There is no way you can look at the DRIP and fashion some sort of separative mechanism out of it.
There are two faces to the political participation in the DRIP. One is that the way in which First Nations speak to democracy, and the second element is Indigenous governance mechanisms, where you have Indigenous Peoples having their own governance mechanisms and practising their own laws and customs. And you see this all over the continent.
But what you see less of in Australia, is effective voice – political participation – mechanisms. It is the one area that Australia has regressed. Straight after the 1967 referendum (that gave the Commonwealth Parliament the power to make laws with respect to Aboriginal people) it was regarded by smart policy makers, politicians and bureaucrats, that you can’t have a change like that if you don’t have First Nations people chosen by their own community to give advice to the State.
To that end, it is really important to note, the narrative and jurisprudence of Article 3 in the DRIP in relation to self-determination is predicated on the broader notion of self-determination, and that is through democratic governance. That is, your right to choose your own representative through the ballot box.
That, effectively, was what the Voice was going to be. It was to be an entity that the government could rely upon, because they knew that the people on the ground were themselves exercising their agency through the right to vote and choosing who they wanted to be their representatives.
Right now, Prime Minister Albanese said in the election leader’s debate that the Coalition of Peaks speaks for First Nations people, and they consult with First Nations people. But that isn’t the case. The Coalition of Peaks has an extraordinarily important job to do, to valiantly close the gap in disadvantage with limited resources in a complicated bureaucratic space. But it is not a representative political body.
The Voice spoke to the idea that suited the Australian political temperament better than the non-discrimination clause that was recommended by the Expert Panel. Because of ATSIC, and the previous representative bodies that have allowed First Nations to have a Voice in Australian Democracy, the Voice was the most popular when we went to talk with people during the Regional Dialogues.
The Voice would have been the strongest way to implement the DRIP and the political participation rights in it.
Other proposals: the UNDRIP Bill and rights scrutiny
There are of course other ways to implement the DRIP, although I think both options that have been put forward since the referendum are weaker options than the Voice.
There is the option that would require an audit and national action plan (the UNDRIP Bill 2022). I’ve sat on UN bodies for 12 years. I’ve seen as a member of the Expert Mechanism on the Rights of Indigenous Peoples all of the activity in the ways states try to implement the DRIP, including national action plans and audits. But I can’t see that this would have the practical effect that is hoped.
I actually think that with an audit you would see that most of the rights in the DRIP have been implemented. It is just the case in a country such as Australia. But not all. And when you do run a ruler across the DRIP rights, and one of the areas which requires more work is Article 3 (self-determination) and Articles 18 and 19 (political participation).
And then, there is the recommendation of a parliamentary scrutiny solution. This was put on the table after the Voice, and there was an irony that some active campaigners against the Voice supported this weaker model, that does not itself include Indigenous political participation.
Before I conclude, I want to make a cautionary remark about ‘free prior and informed consent’, or ‘FPIC’, that is seen for instance in Article 19 of the DRIP. It has become like a buzz word. People stopped talking about self-determination, and everyone turned their attention to FPIC. I think this driven was at an international level by the World Bank and other international institutions who wanted some certainty after the DRIP, and wanted to have some certainty around the mechanisms that would be required. But we should be cautious about FPIC. What we are seeing in some countries around the world, is that when DRIP is implemented domestically, and in particular FPIC, domestic courts are reading Indigenous Rights down. Because of course international law is a homogenising system, it strips things of colour and nuance and creates a generic right. In some systems there is a real danger that in introducing the international standards, protections that exist nationally, such as through first contact treaties or constitutional rights, are stripped down. And FPIC is actually quite a mild consultative right, it has been stripped down under the influence of big international financial institutions and the business and corporate sector. People have to keep that in mind in advocating for the implementation of the DRIP domestically in way that is not reflective of and responsive to the local conditions. There are unforeseen consequences.
__
Professor Megan Davis is a Cobble Cobble woman of the Baranggam Nation in Qld and is the Gough Whitlam and Malcolm Fraser Chair in Australian Studies at Harvard University and Visiting Professor at Harvard Law School.
