Essential ESG: Episode 6 – The United Nations Declaration on the Rights of Indigenous Peoples

Phoebe Wynn-Pope, Head of Responsible Business and ESG

Joshua Aird, Senior Associate, Commercial Litigation and Responsible Business and ESG

Phoebe: Welcome to another edition of Essential ESG, a podcast coming to you from the lands of the Gadigal and the Wurundjeri peoples. My name is Phoebe Wynn-Pope and I am the Head of Responsible Business and ESG at Corrs Chambers Westgarth and today I’m talking to Joshua Aird, a Senior Associate with Corrs’ Commercial Litigation Practice Group and also in our Responsible Business and ESG team. Josh is an experienced litigator with a practice covering investigations, complex commercial disputes and risk advisory but he has a particular focus on ESG risk and mitigation including modern slavery, international human rights, anti-bribery and corruption sanctions and issues relating to First Nations peoples. Josh is a member of the Gilbert + Tobin Centre for Public Law and UNSW and on top of his very busy legal practice he is currently undertaking his PHD in law with a focus on human rights. Good morning Josh, welcome to Essential ESG.

Josh: Thanks Phoebe it’s great to be on the podcast.

Phoebe: Josh we’ve seen in the media in recent weeks a number of high profile cases where Aboriginal and Torres Strait Islander people have sought to block developments and major projects on traditional lands. Many of the rights of First Nations peoples are expressed in the UN Declaration for the Rights of Indigenous Peoples. Can you tell us a little bit about that declaration?

Josh: So the United Nations Declaration on the Rights of Indigenous Peoples (or UNDRIP as it is known) was adopted by the United Nations General Assembly on 13th September 2007. It has just celebrated its 15th anniversary and it was really a culmination of decades of work and is considered best practice in the realisation of Indigenous rights. It is the authoritative international standard that informs the way governments across the globe should engage with and protect the rights of Indigenous peoples. For instance, in Australia, the Aboriginal and Torres Strait Island Social Justice Commissioner June Oscar said that “the declaration is the most comprehensive tool we have available to advance and protect the rights of Aboriginal and Torres Strait Islander peoples. I use the declaration as my guide as social justice commissioner.”

Phoebe: And why do you think UNDRIP is so significant?

Josh: UNDRIP is particularly significant because Aboriginal and Torres Strait Islander peoples were involved in its drafting.

Phoebe: So what are the key principles of UNDRIP?

Josh: According to the Australian Human Rights Commission, UNDRIP establishes a universal framework of minimum standards for the survival, dignity and well-being of Indigenous peoples around the world. It is important to recognise though that it doesn’t create rights but elaborates on existing human rights standards and fundamental freedoms as they apply to Indigenous peoples. The declaration covers all areas of human rights as they relate to Indigenous peoples that are articulated in other conventions such as the Universal Declaration of Human Rights, and the International Covenant and Civil and Political Rights. UNDRIP really guides the implementation of those rights. We generally understand there to be four key principles of UNDRIP – self-determination, participation and decision-making, respect for and protection of culture and equality, and non-discrimination.

Phoebe: I think those are really interesting Josh, and particularly that idea that the rights that are in UNDRIP. We often hear people talking about UNDRIP and saying ‘it’s not really international law, it’s a declaration, it doesn’t really apply’ and to try and diminish the status of UNDRIP in that context. So that link between the existing conventions and the expression of those rights as part of those conventions and particularly around self-determination is particularly important isn’t it?

Josh: Yes that’s right Phoebe, and the application of the United Nations Guiding Principles on Business and Human Rights really pushes against that narrative. The Guiding Principles recognise that there are United Nations instruments that have elaborated on rights as they apply to particularly vulnerable groups such as women, national ethnic or religious minorities and Indigenous peoples and when you are considering Indigenous peoples you really need to consider UNDRIP.

Phoebe: What do you think is the most important principle that UNDRIP expresses, particularly in relation to I suppose businesses operating in Australia or around the world because it is often comes into play doesn’t it, in that relationship when businesses are operating on traditional lands of Indigenous people.

Josh: Yes it does and whenever you are considering land or land-connected peoples, the most important consideration is the principle of free prior and informed consent (or FPIC) and that principle really underpins one of those four foundational elements of UNDRIP that I discussed before, self-determination. It has been recognised by the United Nations that it is impossible to realise the right to self-determination without considering the principle of FPIC.

Phoebe: Because that gives people the right to actually decide how and to consider how their own property and resources are being used, is that right?

Josh: That’s exactly right. It involves Indigenous peoples in the decision-making about their culture, about their land and about their future really. So FPIC is both procedural in a sense that it is a way in which businesses can engage with Indigenous communities, but it also substantive in that there are situations where FPIC is required. You must obtain the consent of Indigenous peoples in certain situations.

Phoebe: Great and I know we are going to discuss this in a whole other podcast because there is a lot to unpack around the FPIC piece. When we think about UNDRIP in Australia, Australia wasn’t one of the first countries to – or didn’t initially sign on to – UNDRIP did they? Along with some other countries, can you tell us a little bit about the history of UNDRIP in Australia and how that’s been evolving?

Josh: So Australia was one of only four countries to vote against UNDRIP in the General Assembly. Australia joined with Canada, the United States and New Zealand. Predominantly over concerns about development projects, but also discrimination and a quasi-dual legal system which UNDRIP would develop. But after two years of further consideration in 2009, Australia changed its vote and did endorse UNDRIP and have committed to the non-binding framework to recognise and promote the rights of Aboriginal and Torres Strait Islander peoples.

Phoebe: There’s a sense that it will also help with reconciliation. I think it is interesting this idea of the voice to Parliament and that idea of free, prior and informed consent and how they will inform each other going forward. There’s been a senate inquiry Josh on UNDRIP. Can you tell us a bit about that because that’s an ongoing … that started with the former government but it is still proceeding isn’t it?

Josh: Yes that’s right, so there have been a couple of inquiries recently in the Australian Parliament that have focused on Indigenous rights in ways that the Australian Government can better recognise the rights of its First Nations peoples. So it started obviously with the events at Juukan Gorge and the senate inquiry into what happened there. But it has led to a broader inquiry on the implementation of UNDRIP and whether or not UNDRIP should be embedded within Australia’s domestic legal framework in order to give better protection to the rights of Indigenous peoples.

Phoebe: Yes so the interesting thing about the destruction of Juukan Gorge was that while everybody was a little bit shocked by what had happened, or a lot shocked by what had happened, the parliamentary inquiry acknowledged that in spite of those enormous consequences that the destruction of the rock shelters had on First Nations communities no laws were in fact broken right, and because this sort of seemingly glaring incongruity the inquiry had recommended the need for a much more unified legal requirements across Australian states and territories and it will be interesting to see how UNDRIP evolves and feeds into that thinking about how that can occur.

Josh: Yes that’s right, a difficulty with these international instruments is they only really bite on the international stage. It takes governments’ implementation into domestic law in order for them to have and achieve real outcomes domestically. Australia’s inquiry into implementing UNDRIP in domestic law does follow that of Canada and Canada’s recent commitment to legislate for UNDRIP. So it will be interesting to see how the Australian Government adopts the recommendations of the committee.

Phoebe: Well we will be watching this space very very closely as we go forward and I think it will have lots of implications for the rights of Indigenous people in Australia, hopefully for the progression and progress in reconciliation with our First Nations peoples and also a lot of implications I think for the way business and Australians operate and conduct activities on Indigenous lands around the country.

So Josh thank you very much for that introduction to UNDRIP and we are going to have a further discussion on FPIC in another podcast.

Josh: Thanks Phoebe can’t wait.