Dominic O’Sullivan
The Declaration on the Rights of Indigenous Peoples was drafted by an indigenous working group and adopted by the United Nations in 2007. Only four member-states were opposed – Australia, Canada, New Zealand and the United States of America. While these states subsequently reversed their positions, it was only after ‘reading down’ the Declaration’s significance to view it as merely ‘aspirational’. There was a fear that the right to self-determination would break up the modern state by allowing indigenous nations to secede. The fear was overstated, though the Declaration does presume extensive indigenous political authority to use their own institutions to manage their own affairs and to manage the alienated lands and resources that it insists should be returned to indigenous owners. The Declaration also envisages nation-to-nation relationships, based on just terms of association, between the post settler state and indigenous nations. It unapologetically and forcefully positions the indigenous nation as a site of self-determination.
Australia, Canada, New Zealand and the United States are post-settler liberal democracies with politically assertive indigenous populations. They have never resiled from the claim to self-determination; a universal right that the Declaration codifies and enunciates for indigenous peoples in specific cultural, historical and socio-political context. Ultimately, the Declaration imagines non-colonial political relationships between indigenous peoples and the states that have emerged over their territories. It imagines indigenous peoples enjoying, as far as possible, the attributes of sovereignty that they never voluntarily surrendered, and which is legitimate because self-determination belongs to peoples as well as to individuals.
The Declaration applies equally to all indigenous peoples, whatever the political character of the colonial state. However, its implications for the advanced democracies that initially opposed its adoption are interesting for the challenges they pose to the workings of the liberal order. The Declaration’s affirmation of indigenous nationhood is important, but this need not diminish or set aside the political capacities that self-determination also requires indigenous people to claim as citizens of the liberal state. On the other hand, is this two-tiered or differentiated view of political authority asking too much of liberal politics? Is it asking the state to concede too much of its carefully guarded sovereign authority? Or could it be that the Declaration’s strength in these societies its own liberal presumption of human equality? It is, after all, an unmistakably liberal assertion that: ‘[I]ndigenous peoples are equal to all other peoples’ and that ‘all doctrines, policies and practices based on or advocating superiority of peoples or individuals… are racist, scientifically false, legally invalid, morally condemnable and socially unjust’ (UN Declaration on the Rights of Indigenous Peoples, 2017, Preamble). Yet, these are the foundations of the ‘feelings of powerlessness, loss of culture and lack of control over their lives’ that, for example, the UN Special Rapporteur on the Rights of Indigenous Peoples found among indigenous peoples during her 2017 tour of Australia.
Liberal societies do exclude to secure what majorities hold in common. They may offer indigenous peoples limited say in the management of ‘white political space’ as Watson and Venne suggest in Australia. In Canada it may try to recognise, without threatening its own domination, what the Supreme Court calls ‘the pre-existence of Aboriginal societies with the sovereignty of the Crown’. Or it may offer junior partnership in a bicultural project as I have shown in New Zealand. However, indigenous self-determination is a much greater and more far-reaching concept. Scholars of the state need to ask what scope might exist within the liberal paradigm to recognise what the Declaration describes as: “the fundamental importance of the right of self-determination of all peoples, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development [and]… Enhance harmonious and cooperative relations between the State and indigenous peoples, based on principles of justice, democracy, respect for human rights, non-discrimination and good faith.”
How might liberal societies rationalise then give effect to the indigenous Australian aspiration, for example, to develop ‘a bit of blackness in this country’s white document’ [Constitution]?
If, in New Zealand, Maori did not cede sovereignty to the British Crown as that country’s Waitangi Tribunal has found,[1] one might reappraise the contemporary meaning of sovereignty; what it is, where it is found, how and by whom it is exercised and why? What does it mean for indigenous people to share in public sovereignty and why is it important?
The Declaration calls on the liberal state to consider its own capacities to support a more expansive politics of inclusion, where indigenous peoples are as much as any other citizen shareholders in a national sovereignty that the state ought to protect. Political values and institutions matter. Politics does not reflect a natural order, but one that people consciously influence.
Political authority means being able to develop an understanding of citizenship that makes sense in cultural terms and that makes sense as a political response to colonialism; a response that transcends colonialism’s deprivation of the rights and liberties that the liberal state claims belong equally to all persons. Liberty is not an abstract concept. It is culturally and politically contextualised and depends on just terms of association between indigenous peoples and the state and between indigenous and other citizens.
The Declaration affirms the relevance of culture and prior occupancy to the ways in which indigenous people frame their rights of belonging to the political community. Public sovereignty is not, then, the exclusive domain of the state; the exclusive domain of the ‘Crown in Parliament’. The Declaration’s presumption of the right to participate freely in the political, social and economic affairs of the state presumes a substantive right and means that indigenous concerns cannot be treated only as matters of egalitarian justice.
While relative indigenous material poverty can be traced to the colonial deprivation of liberty, the right to self-determination is concerned with the political capacities for culturally meaningful citizenship. The rights to language, culture and distinctive political voice and the right to authority over lands and resources belong to people by virtue of indigeneity alone. These rights have implications for what indigenous peoples reasonably expect within the state and complement the independent authority that the Declaration affirms for indigenous peoples beyond the state in their own institutions. From this perspective, indigenous citizenship may include the right to education in one’s own language, the presumption of culturally cognisant healthcare, a criminal justice system that protects indigenous people just as it protects anyone else and the right to manage lands and resources according to custom and with the same legal protections assumed by other land holders. However, these are not rights claimed from a benevolent state. They are rights that belong inherently and that require active and influential indigenous participation in public decision-making. Active citizenship, rather than the consultation or partnership belonging to a politics of exclusion, is what the Declaration imagines.
Citizenship reflects one’s place in the political community. It shows whether one is inside or outside the collective sovereign. Taking one’s place as a citizen of a collective sovereign does require recognition of the state’s right to exist, but it is not assimilation. The Declaration affirms the indigenous right, collectively and individually, to determine the nature of one’s membership of the state and ensures that indigenous people participate and influence the laws, policies, practices and values that frame indigenous authority over their distinctive affairs. The political capacities that exist inside and outside the state are complimentary. Neither can exist meaningfully on its own and claiming extant authority to manage their affairs in their own ways and for their own purposes reflects sovereignty’s dispersed character. It is not an absolute authority that once belonged entirely to indigenous peoples, was usurped in its entirety by the British Crown and is reclaimed by indigenous peoples as an authority that in a ‘them’ and ‘us’ binary would prevent meaningful indigenous influence as citizens of the state. Just terms of association are important because as the Supreme Court of Canada has put it: ‘We are all here to stay’.
Though it is democratically important and an inescapable constituent of the right to self-determination, indigenous people are, however, unlikely to see the state as ‘theirs’. It is, after all, the institution that has dispossessed and alienated because it has denied fundamental human equality. However, if one thinks of sovereignty as dispersed, as belonging to indigenous peoples in the conduct of their own affairs, and as belonging not to the institutions of state but to the people, including indigenous people, then one has the basis of an inclusive liberal democracy.
The Declaration’s effectiveness will depend on its capacity to change perceptions of the nature of sovereignty, citizenship and democracy so that the character of state authority is itself re-configured and loses its capacity to act as a constraint on the indigenous capacity for self-determination. Even the absolute and indivisible sovereignty of Hobbes’ Leviathan was illegitimate if it was not exercised for the good of the commonwealth. It ought to be within the contemporary liberal state’s capacity to define a common good that protects all and not just some people’s liberty.
Reference:
[1] The Waitangi Tribunal is a judicial body established in 1975 to hear Maori grievances against the Crown for breaches of the Treaty of Waitangi. The Treaty was an agreement between the Chiefs of the United Tribes of New Zealand and the British Crown, made in 1840, and which allowed British Government to be established over the settler population, protected Maori authority over their own affairs including natural resources and granted Maori the status of British subjects.
Dominic O’Sullivan is Associate Professor of political science at Charles Sturt University, Australia. His recent publications include Indigenous health: power, politics and citizenship (Melbourne: Australian Scholarly Publishing, 2015) and Indigeneity: a politics of potential – Australia, Fiji and New Zealand (Bristol: Policy Press, 2017).