VOLUME 20 NUMBER 3, 2011
SPECIAL ISSUE - The 2007 Declaration on the Rights of Indigenous Peoples: Indigenous Survival – Where to from Here?
- Special Issue Editors: Irene Watson and Sharon H Venne
The 2007 Declaration on the Rights of Indigenous Peoples: Indigenous Survival – Where to from Here?
The presentations and articles in this symposium volume critically engage with the United Nations Declaration on the Rights of Indigenous People (UNDRIP) and the symposium question ʻ Indigenous Survival: Where to from here?ʼ The contributors map the exclusion of Indigenous peoples from definition as peoples in international law, and their attempted domestication within colonial nations. The soft laws of the UNDRIP are examined for their potential to recognise and protect Indigenous peoplesʼ survival as peoples.
Patriarchy: The Ultimate Conspiracy; Matriarchy: The Ultimate Solution: History – or ‘His-story’?
These last 6000 years are a convenient lie. From religion to governments, we have lived under a patriarchy with the leaders at the top of the proverbial pyramid and the rest of us underneath. This is a fact of life on our over-populated earth. What is a patriarchy, though? It is a system that both completely lacks and completely fears the feminine. Patriarchy is an imbalanced, fear-based, warlike and truly insane structure because only a patriarchy is on top, obsessed with control and completely inhumane to everything below. What it fears, it wants to control; what it canʼt control, it wants to terrorise and destroy. Within this strict system, there is no true freedom. What, then, is the solution to this problem? The answer is to simply return to a matriarchy, based on the feminine. A matriarchy actually represents the origins of individual liberty through representative government.
A Travesty of a Mockery of a Sham: Colonialism as ‘Self-Determination’ in the UN Declaration on the Rights of Indigenous Peoples
On 13 September 2007, after three decades of often obfuscatory debate, the UN General Assembly adopted the Declaration on the Rights of Indigenous Peoples. Although it is affirmed in the second preambular paragraph that ʻIndigenous peoples are equal to all other peoplesʼ, and therefore, as is stated in Article 3, ʻhave the right to self-determinationʼ, Article 4 limits the exercise of that right to the enjoyment of ʻautonomy or self-government in matters relating to their internal and local affairsʼ within the various states by which Indigenous peoples have been involuntarily subsumed. Reinforcing the latter point is Article 46(1), which states: ʻNothing in this Declaration may be ... construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.ʼ This article seeks to demonstrate how the 2007 Declarationʼs delineation of Indigenous rights not only fails to fulfil the aspirations of those who pursued such an articulation during the last quarter of the twentieth century, but reflects a radical disjuncture from previous codifications of the right to self-determination in international law. Indeed, it is my contention that in foreclosing upon the cardinal principle of the right – that ʻall peoplesʼ hold the prerogative of opting for complete independence from alien powers – the Declaration turns the rhetoric of self- determination to the opposite purpose, that of consecrating in law the very structure of internal colonial domination and exploitation at the hands of state entities from which Indigenous nations have been struggling to free themselves. In advancing such an argument, it seems useful – even necessary – to trace the course of the effort by Indigenous peoples to obtain formal recognition of their rights by the United Nations, placing particular emphasis upon Indigenous conceptions of the right to self-determination at each step along the way.
The Road to the United Nations and Rights of Indigenous Peoples
Why did Indigenous peoples want to be recognised as nations and have our treaties recognised as international legal instruments? Why do Indigenous peoples want to have our territories and resources recognised under international law? Can a Declaration on the Rights of Indigenous Peoples accomplish those goals? Why did Indigenous peoples go to the United Nations? The simple answer is that the United Nations is an international body designed by the founders to promote self-determination and the rights of peoples. It should have been easy for Indigenous peoples to appear at UN meetings and to be recognised as nations and peoples, using the United Nations Charter. However, the road to the United Nations and recognition of our rights was not an easy one for Indigenous peoples.
The UN Declaration on the Rights of Indigenous Peoples and the Paradigm of Domination
This article argues that the term ʻIndigenous peoplesʼ is correctly interpreted as ʻdominated peoplesʼ. It is contended that the need for the UN Declaration on the Rights of Indigenous Peoples – adopted by the UN General Assembly on 13 September 2007 – was a direct consequence of (1) a tradition of states defining Indigenous peoples as ʻless-than- humanʼ and (2) states constructing and institutionalising in law and policy a framework of domination against Indigenous peoples. However, far from being a remedy to these issues, not one of the 46 Articles of the UN Declaration addresses the issue of domination and Indigenous peoples. A critical examination of the UN Declaration must account for the fact that state actors involved in foreign and international affairs are intent on maintaining the status quo and are quite cognisant of the social construction of reality. In the United States in particular, the framework of domination that constitutes US Indian federal Indian law and policy is traced to arguments found in Vatican documents and Royal colonial charters of England that a discovering ʻChristian prince or peopleʼ, ʻChristian stateʼ or ʻChristian powerʼ had the right to assume an ʻultimate dominionʼ (right of domination) as against original non- Christian (ʻheathenʼ and ʻinfidelʼ) nations and peoples. It was the issues of lands, resources and self-determination that arose from this Christian European system of categorisation which drove American Indian elders, spiritual and ceremonial leaders, scholars and activists into the international arena in 1977, and eventually resulted in the UN Declaration being adopted 30 years later in 2007. It remains an open question as to whether the UN Declaration provides a means of overturning the dual tradition of domination and dehumanisation that the United States and other states have built and maintained for more than two centuries. In the case of the United States, such a reform on the basis of the UN Declaration seems highly unlikely, given the unwillingness of the US government, including the US Supreme Court, to disavow or discontinue using its system of dominating categories against Indian nations and peoples.
Black Power, Land Rights and Academic History
In this article, I discuss certain aspects of Australian Indigenous history of the 1960s and 1970s and critically examine the manner in which this history has been taught and written by non-Indigenous academic historians. What has been the role of white academic historians, and how have their misinterpretations and distortions contributed to the regressive and repressive government policies of today, such as the Northern Territory intervention. The article calls for more Aboriginal university students to consider history as an equally important field of study to law, in terms of changing attitudes in Australian society.
Aboriginal(ising) International Law and Other Centres of Power
The recognition of Indigenous peoples has been a subject of vigorous debate in international law and relations for more than five centuries, and in contemporary times it remains an unresolved dilemma. The irresolution remains even though the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) sets out minimum standards for Indigenous rights and much work has been done by UN bodies and human rights experts. In spite of these developments, the reality embodies ongoing violations of Indigenous peoplesʼ rights across the globe. This article reviews the contemporary relations between Indigenous and non-Indigenous peoples and explores how those relations continue to be shaped by the dynamics of power – dynamics that centre western knowledges and understandings. This article also examines the resulting power imbalances and how those imbalances might be redressed through an approach that centres Aboriginal knowledges, understandings and perspectives on the nature of Aboriginality and the right to be Aboriginal. The ultimate goal is to assess how the centring of Aboriginal perspectives would assist the process of building more equitable relationships based upon principles of coexistence, and how such a process would go beyond the translation of Aboriginal rights done by Western interpreters. Essential to it is the capacity for peoples to determine and define their sense of self and Aboriginality. This article reviews developments in international law and approaches to the perceptions of Aboriginality and associated rights.
Virtuous Racial States: The Possessive Logic of Patriarchal White Sovereignty and the United Nations Declaration on the Rights of Indigenous Peoples
In this article, I demonstrate how patriarchal white sovereignty deploys virtue to dispossess Indigenous peoples from the ground of moral value by focusing on the United Nations Declaration of the Rights of Indigenous Peoples. This will be explicated through analysing the introduction and four key rights areas that were contested by Canada, Australia, the United States and New Zealand, and looking at core elements of their subsequent endorsement of the Declaration.
Will the Declaration Make Any Difference to Australia’s Treatment of Aborigines?
The Aboriginal Provisional Government (APG) believes the entitlements of Aboriginal peoples derive from previous exclusive rights to the country, and that the status of Aboriginal entitlements is to be seen accordingly. The expression of those rights has been disrupted by the invasion and subsequent building of the illegitimate Australian nation. The APG holds that the full extent of Aboriginal rights places Australian Aborigines alongside other nations of the world, not subordinate to any of them. This article discusses how the fundamental values that make up Australia are based on the belief of white supremacy, and how that notion is likely to ensure the Declaration does not become part of domestic law. However, there are other avenues Aboriginal people can use to agitate for change, both within Australia and to international bodies. All it takes is action and ideas, and the knowledge that much can be done.
The Permanent Quest for a Mandate: Assessing the UN Permanent Forum on Indigenous Issues
The purpose of the article is to critique the United Nations Permanent Forum on Indigenous Issues from the point of view of its (self-declared) role as the implementing body of the Declaration on the Rights of Indigenous Peoples. Our main concern lies with what the activities of the Permanent Forum entail with regard to the scope and substance of Indigenous rights, with a focus on human rights as distinct from a group right of self-determination. The article hinges on a detailed analysis of the processes through which the Permanent Forum has sought to create and define its own mandate. These processes have involved a marginalisation or co-option of ʻotherʼ voices in the field of Indigenous rights, testifying to the capacity of international organisations and the state system they represent to ʻderadicaliseʼ Indigenous resistance.
Biocolonialism and Indigenous Knowledge in United Nations Discourse
This article examines the misappropriation of Indigenous knowledge and biological resources within a global site of contestation called biocolonialism. Biocolonialism extends the reach of the colonial process into the biomes and knowledge systems of Indigenous peoples in the search for marketable genetic resources and traditional knowledge. The article focuses on the intersection of international standard-setting debates related to genetic resources and traditional knowledge, and Indigenous peoplesʼ advocacy in the assertion and protection of their rights in international fora. I argue that Indigenous peoplesʼ cultural heritage – including our knowledge and biodiversity – should not be subjected to the intellectual property regime and that recognition be given to the prior, inherent and inalienable rights of Indigenous peoples, consistent with our right of self-determination.
Law and Its Confinement: Reflections on Trevor Nickolls’ Brush with the Lore
The 2007 Declaration on the Rights of Indigenous People, Indigenous Survival – Where to from Here? symposium included a visit to a retrospective exhibition and a talk by the artist, Trevor Nickolls. Nickollsʼ recent work Brush with the Lore was featured as part of the retrospective. The painting, which represents law as a prison, serves as the provocation for this article. The idea of law as an exercise in containment is discussed as a serious jurisprudential, bureaucratic and political challenge, one that is significantly under-theorised in scholarly research on Indigenous people and the law.