Dominic O’Sullivan
Post-settler liberal states like Australia, Canada and New Zealand struggle with the pluralist non—colonial societies that indigenous peoples seek, with recourse to the UN Declaration on the Rights of Indigenous Peoples, and domestic instruments like the Treaty of Waitangi in New Zealand. With the United States, these were the only UN member states opposed to the Declaration, that the General Assembly adopted in 2007. All three states subsequently ‘read down’ the Declaration’s transformative scope, acknowledging it only as an aspirational statement. Australia’s representative explanation was that:
The Declaration is historic and aspirational. While it is non-binding and does not affect existing Australian law, it sets important international principles for nations to aspire to.
My book, ‘We Are All Here to Stay’: citizenship, sovereignty and the UN Declaration on the Rights of Indigenous Peoples, published in September, uses the Declaration to examine contemporary indigenous claims. It examines how these claims engage with prevailing liberal democratic practice to consider whether it is possible, thus far into the colonial process, to establish pluralist non-colonial societies.
Colonisation was not a single and historic act of aggression. It is a system of political values involving the state’s presumption of hegemonic authority over indigenous nations and their members. The liberal political systems that have evolved in Australia, Canada and New Zealand are distinguished by philosophical and practical contradictions between liberalism’s essential concern for human equality and colonialism’s necessarily exploitative logic. The idea that self-determination is a universal right belonging to indigenous peoples as much as to everybody else is the Declaration’s overarching challenge to colonialism’s basic presumption, which is that some people’s self-interest is morally superior to others’ rights to land, culture and substantive political voice, for example.
Political exclusion is colonialism’s most important contemporary expression. While in New Zealand, for example, there have been guaranteed Maori seats in parliament since 1867 and more recently Maori membership of the executive that is roughly proportionate to the Maori share of the national population, less than proportionate policy influence remains. For example, since 2018 five independent reports have found that systemic racism explains why the number of Maori children removed from their families by the state’s child protection agency is significantly higher than the number of non-Maori removals.
In Australia, indigenous arguments for a constitutionally enshrined representative body to provide a Voice to Parliament have been rejected by the government, even though in 2020 the Prime Minister argued that sustained failure in indigenous policy was attributable to indigenous people being excluded from the policy process. Scott Morrison explained that measures to ‘close the gap in indigenous disadvantage’ were ‘wrong-headed’ because the government didn’t look at the gap through the eyes of Indigenous Australians. We told indigenous Australians what the gap was… and, somehow thought they should be thankful for that.
In Canada, decision-making about mining, and other commercial development on indigenous land, is a matter of particular contest. The Supreme Court has found that indigenous consent is not required when development is in the ‘public interest’. The public interest ‘can justify the infringement of aboriginal title’. In this way, indigenous people are separated from the public whose interests the law is intended to serve. Indigenous cultural, religious and economic associations with land or, indeed, their right to benefit from a mining project, for example, are thus beyond public interest.
In contrast, the Declaration is explicit:
States shall consult and, cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and, informed consent prior to the approval of any project affecting their lands or territories and, other resources, particularly in connection with development, utilization or exploitation of mineral, water or other resources (Article 32:2)
Indigenous people have had to concede that this is a right of veto. But it does imply a right to participate in decision-making on the assumption that the indigenous nation is part of the public entitled to benefit from a project. There is a reasonable indigenous expectation that t their distinctive interests are brought into public decisions and are not morally less worthy of influence than the views of other people.
In Australia, however, this is a presumption that carries no political weight. Native title is a lesser form of land ownership than individual freehold title. Indeed, Keim and Reidy argue that there is a well-established Native Title Tribunal jurisprudence insisting that ‘a healthy mining industry is synonymous with the public interest’. This is why, in 2019, the Queensland government could override indigenous objections to a coal mining project by extinguishing the indigenous owners’ native title and granting freehold rights over the land to the mining company.
Indigenous values were beyond the public interest.
The Declaration is not a binding instrument. It does not have the legislative standing that it has been given in British Colombia, though it is too soon to assess the impact of the Province’s Declaration on the Rights of Indigenous Peoples Act 2019.
While the Declaration does affirm the state’s to govern and preserve its territorial integrity, it is still a very different kind of state that is imagined. A state that is largely relieved of its colonial characteristics and which accepts plural sites of authority and plural values and modes of operation in its public institutions.
For example, the right to speak Maori in parliament, judicial proceedings and any public institution is well-established in New Zealand. But the Declaration’s overarching presumption has wider influence still.
Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and, cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and, cultural life of the State (Article 5).
The right to maintain and strengthen distinct institutions is a right to independence. Independence in matters as diverse as education, language, health, broadcasting and economic development.
The nature of the right to full participation in the life of the state is not so clearly set out. But it is clear that indigenous peoples are entitled to seek out forms of distinctive participation. The Voice to Parliament that is proposed in Australia is an example.
The right to full participation is more substantive than modern practices of consultation or policy co-design. Participation imagines indigenous policy leadership, for example. Therefore, the Declaration challenges the common liberal presumption of equality as sameness in the form that political participation assumes. For example, indigenous people in Australia and Canada share with other citizens the right to vote and seek election to Parliament, whereas in New Zealand that right may be expressed in guaranteed Maori constituencies. This means that Maori voters may evaluate parliamentary candidates from distinctive cultural perspectives and with reference to matters of specific concern. The maintenance of language and culture, access to education that meets distinctively Maori expectations of what education should achieve, and health care that is respectful of culture, and as effective for Maori in its outcomes as it is for any other citizens. Candidates in Maori constituencies need not compete for the support of non-Maori voters who may not share these imperatives.
Full participation may include indigenous values influencing policy development, legal interpretation and, indeed, the practice of the law.
Stephens described her observation of a Maori law students’ mooting competition, which provides an example of pluralistic and potentially non-colonial approaches to the law.
Of the six mooters, four of the students mooted in Maori. Each of them was able to move fluidly between an unconscious ownership of the legal system and, of tikanga Maori (Maori values and practices), and a blistering critique of the same systems. Just one small symbolic and, up-ending moment of something better. There are such moments waiting to coalesce.
On the other hand, although the Declaration was drafted by indigenous people and reflects a comprehensive body of internationally agreed indigenous political thought, it is ultimately an instrument of UN member states. Its extensive focus is on state obligations to indigenous people. The rights that it enunciates need to be translated, in local contexts, into meaningful indigenous political capacities. Including, especially, the capacity to participate in public life as an indigenous person with the same reason as anybody else to believe that one’s participation is potentially influential. This, in turn, means that equality is not sameness. The right to go to school is not an equal right unless there is an equal expectation that one’s values will be upheld and that one will have the same chance to define and pursue success as anybody else.
The Declaration does not guarantee pluralist non-colonial societies because it is not binding and it relies too heavily on state obligations over indigenous capacities, but its potential is significant, and its presumption of a different kind of politics is clear.
Dominic O’Sullivan is an Associate Professor of Political Science at Charles Sturt University and Adjunct Professor in the Centre for Maori Health Research at the Auckland University of Technology. He has published extensively in the field of comparative indigenous politics and public policy. His seventh book ‘We Are All Here to Stay’: citizenship, sovereignty and the UN Declaration on the Rights of Indigenous Peoples was published in September this year by ANU Press. His next book Sharing the Sovereign: indigenous peoples, recognition, treaties and the state is forthcoming with Palgrave Macmillan.
Image: judy-watson-napangardi-mina-mina