The Universal Declaration of Human Rights and the Rights of Indigenous Peoples: An Eightieth Anniversary Reflection
The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) fills important gaps in the Universal Declaration of Human Rights by recognising that human rights belong to peoples as well as to individuals. It emphasises collective rights to language, culture and natural resources as inherent to indigenous humanity.
UNDRIP codifies indigenous rights against the state. Rights to independent political organisation and education systems and rights to non-discrimination. However, the overarching right to self-determination is not just a right to independence and non-interference by the state. It is a relative and relational right that is beyond an ‘us’ and ‘them’ binary of colonial confrontation.
Self-determination is also the right to substantive and culturally meaningful citizenship of the state. One can then, on its eightieth anniversary, still turn to the Universal Declaration of Human Rights to develop UNDRIPs single explicit reference to indigenous rights within the state; its reference to rights of equal citizenship.
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).
If ‘We are all Here to Stay’ as the Canadian Supreme Court’s Chief Justice Lamer put it, respect for indigenous peoples as indigenous and respect for the presence of human rights in specific context requires a deeper politics than simply reconciling ‘the pre-existence of Aboriginal societies with the sovereignty of the Crown’.
While from some indigenous perspectives, participation legitimises the colonial state, from others it is a simple acceptance that self-determination cannot occur as a politics of isolation. It requires two kinds of citizenship. Independent citizenship of the indigenous nation embodying rights and responsibilities that the UNDRIP sets out alongside the capacities of citizenship that it acknowledges but does not systematically develop.
The Universal Declaration’s Preamble speaks explicitly of colonial experience: ‘disregard and contempt for human rights have resulted in barbarous acts’ though not always as the Preamble continues to ‘outrage the conscience of mankind’. However, its presumptions of human equality remain relevant to fundamentally equal and culturally meaningful capacities of state citizenship: that all are equal before the law…; all are entitled to equal protection against any discrimination (Article 7); that everyone has the right to own property alone as well as in association with others (Article 17 (1)); that everyone has the right to take part in the government of his country, directly or through freely chosen representatives (Article 21 (1).
Contemporary Australian and Canadian indigenous public policy privileges an indigenous right to be ‘consulted’ over the more substantive right to active participation as it exists through the Sami parliaments in Norway and Sweden and guaranteed Maori representation in the New Zealand parliament, for example. Consultation denies the capacities of active citizenship that both the Universal Declaration and UNDRIP imagine.
The proposition that everybody has the right to participate actively and equally in national government fundamentally challenges the settler state relationship. It contests the presumptions of settler states like Australia, Canada and New Zealand of exclusive sovereignty over and above indigenous peoples.
The Universal Declaration’s inference that everybody is entitled to share public sovereignty exists alongside the UNDRIPs presumption that there is also an extant independent indigenous sovereignty. Recognising co-existence of different though overlapping spheres of authority provides a possible path towards substantive human equality for indigenous peoples as much as for anybody else.
The two Declarations’ perspectives are complementary. It is important to advancing the fullness of the right to self-determination that the UNDRIP is seen as adding to and contextualising the human rights of indigenous peoples, but not superseding the first Declaration’s essential contribution to non-colonial political relationships.
Reading the two Declarations together helps one to think broadly about where political possibilities lie; to consider the implications, for example of New Zealand’s Waitangi Tribunal finding that the Treaty of Waitangi was not a ceding of Maori sovereignty to the British Crown. Relationships between indigenous and settler sovereignties are complex and contested. Together, the Declarations may position sovereignties as relative and relational and not necessarily in binary conflict.