Declaration on the Rights of Indigenous Peoples: 1st Anniversary
In two significant developments since the UN General Assembly adopted the Declaration on the Rights of Indigenous Peoples on September 13, 2007, two of the four states opposed to its adoption have taken significant political action in recognition of indigenous communities and in support of the Declaration. In Australia, Prime Minister Kevin Rudd issued an apology in February 2008 for the nation’s historic injustices to Aborigines and announced his country’s likely endorsement of the Declaration before the General Assembly. In Canada, Prime Minister Stephen Harper in June 2008 issued an apology to the country’s native population for racial discrimination and mistreatment. Two months earlier, the Canadian House of Commons passed a resolution on April 8, 2008 in support of the Declaration. This discussion examines the role of apologies in addressing past injustices and how they impact financial, political, and legal concessions to previously or currently disempowered indigenous communities.
How Do Apologies Impact Perceptions and Policies To Correct for Past Injustices?
How do apologies impact perceptions and policies to correct for past injustices? Do apologies favor the upholding of culture as heritage while restricting arguments for culture as land, culture as development, and self-determination? Do apologies control or substantially dilute financial and political concessions to previously or currently disempowered communities? Do apologies foster mechanisms for universalism? Are apologies a means to promote assimilation or are they part of the requisite transformations of societal forces giving rise to the defensive insular mechanisms developed by indigenous peoples? If the apology grants remedies, how should these remedies be structured to uphold the current rights of others in society who may be harmed?
Do Apologies Foster Mechanisms for Universalism or Cultural Particularity?
Concurrent with the apology and in accordance with a rights-based approach, Prime Minister Rudd called for a Constitutional referendum to grant positive recognition to the Aboriginal peoples. He did not indicate whether the proposed textual changes should be specific to Aboriginals or generalized to prohibit any racial discrimination under a more universalistic equal protection principle. It also is unclear whether such a constitutional amendment will be effective or meaningful for the Aboriginals in the absence of changes to other constitutional provisions or laws, such as section 51 permitting the parliament to enact special laws based on race. Australian law professor George Williams asserts that these negative constitutional provisions must be deleted and any new provisions must allow only positive laws with respect to Aboriginal rights. He also asserts that any constitutional changes must be accompanied by a treaty because a treaty is the only sustainable solution between non-indigenous and indigenous peoples in Australia. The treaty would establish the foundations for the relationship between Aboriginals and the government and grant without qualification the right of self-determination. Interestingly, he points to New Zealand, which is a non-supporter of the Declaration, as the successful treaty example for Australia to follow in its attempt at reconciliation.
An additional issue is whether the tendency of universalism is increased by the desire of governments to appeal to the international community through or within their apologies. The Australian Foreign Affairs Minister stated that the apology was good for Australia’s image internationally and that the apology enhanced the nation’s “credentials and reputation.” Implicit in this portrayal is that wording of the apology was intentionally targeted to international audiences. Thus, the proposed referendum raises questions of whether the modernizing move will produce conflicts between indigenous cultural heritage and universal values pursuant to global norms and international human rights instruments. Is the underlying theme of apologies to foster assimilation, to recognize the right to culture, or both?
Do Apologies Help Transform the Forces Underlying Defensive Mechanisms?
Karen Engle contends in a forthcoming article that the underlying pathology for defensive mechanisms within an indigenous community must be addressed through a change of the forces giving rise to the need for the defensive mechanisms. As such, the use of defensive mechanisms merely to protect the group in the absence of altering impinging forces, she asserts, is short-sighted and counterproductive. If societal transformations are essential to the sustainability of cultural identities, public apologies can serve to support a strategy of “risk” exposure by addressing the threats that initially created the political, social, economic, and material inequalities and by providing top-down endorsement of the legitimacy of those cultures without requiring an over idealization of them. Thus, the apology may serve an important function as the catalyst to provide what Engle asserts is the requisite societal transformation for changing the power structures threatening indigenous cultures.
Do Apologies Support Accountability?
Do apologies encourage or support a dismissal of past wrongs and thus dilute financial and political concessions for past injustices? For example, the Australian apology makes no promises of remedies for past injustices. Rather, the apology calls for “equal opportunities” and an “equal stake in shaping the next chapter” of the nation’s history and for closing the gap between non-indigenous and indigenous people through “educational achievement and economic opportunity.” Implicit in the apology is the removal of barriers rather than concessions for the past. Moreover, the apology does not commit to affirmative action going forward as compared to passive nondiscriminatory opportunities. Notably, domestic polls after the Australian apology revealed overwhelming public support for the apology yet only 30% public support for financial compensation, which indigenous leaders have sought as the first step for correcting past injustices. To that end, symbolic remedies essentially could be perceived or used as functional replacements for other forms of compensation. Does unilateral framing by the government of the apology’s language in the context of past wrongs support a lack of responsibility for remedying the past and its contemporary consequences? Can it be used to deter accountability based on the presumption that because current society did not control the decisions of the past, it is not responsible for the remedies?
Do Apologies Narrowly Define “Indigenous Peoples”?
Significantly, the Declaration lacks a definition for “indigenous peoples” and thus is vulnerable to opportunistic interpretations. This flexibility could allow for apologies to define too narrowly or too broadly the relevant indigenous groups, such as based on stagnated conceptions of culture or with the intent of limiting obligations for land rights and development opportunities. For example, Canada released the latest census statistics on Aboriginal peoples to much mainstream media acclaim yet criticism from the representatives of the on-reserve indigenous peoples. The on-reserve tribes attacked the government’s definition of indigenous people as inclusive of off-reserve tribes who never were voluntarily or forcibly located on tribal reservations. These tribes are concerned that the broadened definition will dilute the economic funding for what they consider are the indigenous groups to be constitutionally protected. Moreover, they foresee other “real world implications,” such as consequences for their calls for self-determination, legislative reforms to balance collective rights and individual rights, the establishment of a Truth and Reconciliation Commission to investigate historic injustices, and a public apology by the government to acknowledge past crimes suffered by indigenous peoples.
China, on the other hand, poses an interesting example of the implications for too narrowly defining “indigenous peoples.” Puzzled by China’s endorsement of the Declaration, I was surprised to find that the Chinese delegate in 1997 stated, “In China, there are no indigenous people and therefore no indigenous issues.” He further asserted that “by and large, they are the result of the colonialist policy carried out in modern history by European countries in other regions of the world, especially on the continents of America and Oceania.” Thus, by narrowly defining indigenous peoples, China contends that it neither needs to apologize to nor has any obligations with respect to any indigenous peoples within its territorial boundaries.
How to Handle Competing Claims?
With this definitional gap in mind, one critical issue is how to handle the rights of multiple indigenous groups with competing or concurrent claims. As seen in Canada, one group may self-declare that it essentially is more indigenous than others. These competing groups may self-declare that they are more deserving of land rights, equality, economic opportunities, apologies, autonomy, or self-determination. These claims may come from sustainers of an existing culture, revivalists seeking to restore a culture, or constructionists seeking to modernize their culture. In other cases, it may arise from historical overlap.
UN General Assembly Adoption of the Declaration on the Rights of Indigenous Peoples
The General Assembly adopted the Declaration on the Rights of Indigenous Peoples on September 13, 2007 with support from a majority of the member states. The Declaration passed by a vote of 144 states in favor, 4 states against (Australia, Canada, New Zealand, and the United States), and 11 abstentions (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, the Russian Federation, Samoa, and Ukraine). The four states opposed to its adoption cited concerns of inadequate clarity on self-determination, the absence of a definition of “indigenous peoples,” and ambiguity on land and resource rights.
The key turning point for its adoption was the addition of limiting language to the right to self-determination under Article 3. The language of Article 46 emphasizes the preservation of territorial boundaries and political unity within a sovereign state. The presumption is that Article 3 will be read and interpreted in light of Article 46 to preclude a right of
unilateral secession and boundary alterations across states. The compromise satisfied many African nations concerned with sub-units fracturing the country and the re-division of geographical boundaries. The United States voiced its continued opposition to the textual structure of the compromise, asserting that it creates risks of “endless conflicting interpretations.” Canada emphasized that the wide variety of interpretations could implicate conflicts with existing treaties, particularly with respect to land, territories, and resources. Australia questioned the need to recognize the right to self-determination, rather than political participation, when the larger society is premised on a democratic representative government.
International Treaties and Declarations