What is contained in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and what does UNDRIP mean to First Nations Peoples?
After more than 20 years of negotiation between First Nations Peoples and governments worldwide, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was finalised on 13 September 2007 with the majority of 143 states voting in favour. Renowned constitutional lawyer and Cobble Cobble woman Prof. Megan Davis notes that during this lengthy period, negotiations between Indigenous peoples and states were antagonistic and at times intractable. It is important to note that UNDRIP is the first UN resolution that is drafted by the rights-holders themselves.
Interestingly (and embarrassingly!), the four states who initially voted against UNDRIP were Canada, the USA, Aotearoa/New Zealand, and Australia (though they have all now reconsidered their position). These nations – all founded on and continually engaged in the settler colonial project – argued that the level of autonomy and self-determination which UNDRIP recognised for First Nations and other Indigenous peoples was problematic and would undermine the sovereignty of their own states, particularly in the context of land disputes and natural resource extraction, as well as elevate a set of rights for one group of peoples above others. The Australian Government position was that it could not support a concept that might “threaten its territorial integrity or political sovereignty”.
With 46 Articles, UNDRIP is now the most comprehensive international instrument articulating the inherent human rights of First Nations and other Indigenous peoples worldwide, as well as providing a framework for the protection and realisation of those rights. This framework sets out the minimum standard for how states – and others – should engage with and respect the rights of First Nations peoples, with regard to their dignity, well-being and survival.
In addition to safeguarding individual rights of First Nations and other Indigenous Peoples worldwide, UNDRIP also speaks to the inherent rights of First Nations Peoples as collectives of Peoples in a way that previous human rights charters do not.
As Prof. Megan Davis illustrates, the rights contained in UNDRIP are essentially grouped into themes:
These rights are generally not considered new rights, but rather should be understood as a reframing of various universal and inherent individual rights which all human beings possess. The rights in UNDRIP have been framed to properly account for the unique cultures, histories, circumstances and interests of First Nations Peoples, as well as to recognise the unique status of First Nations Peoples as collectives of Peoples.
S. James Anaya, Special Rapporteur on the Rights of Indigenous Peoples…[t]he Declaration does not attempt to bestow Indigenous peoples with a set of special or new human rights, but rather provides a contextualised elaboration of general human rights principles and rights as they relate to the specific historical, cultural and social circumstances of Indigenous peoples.
While UNDRIP is not legally binding unless legislated into a nation’s domestic laws, it is an important articulation of the inherent collective rights that First Nations and other Indigenous Peoples’ have: to self-determination, to their lands and territories (and to the right to participate in decision-making about any proposed activities taking place on these territories), to their cultural identities, to self-representation, to deciding their fates based on their own unique collective values and beliefs, and even to reparations if and when these rights are violated. In this sense, UNDRIP carries moral weight and acts as a normative tool to establish parameters for a universally agreed upon set of behaviours that are expected from states. In other words, UNDRIP is a set of instructions on how states should behave towards First Nations and other Indigenous communities in respecting their rights.
Whilst UNDRIP is not seen to be legally binding on a nation state unless ratified by that nation state and codified in their domestic law, it nonetheless carries more than a normative function, that is, UNDRIP does more than set aspirational standards for the just, fair and proper treatment of First Nations Peoples by a nation state.
The fact that UNDRIP is a non-binding declaration in international law (or ‘soft law’, as it is often called), does not dismiss or diminish its importance and should not be seen as a reason for overlooking the impact that UNDRIP can and should have in domestic legal systems across the globe. In addition to arguably setting a legal benchmark for nation states that have endorsed UNDRIP, whether ratified/codified or otherwise, as Alan Boyle argues, the widespread acceptance of UNDRIP also makes “the legality of opposing positions harder to sustain”. Some scholars even argue that soft law can be understood as a decolonial tool which allows First Nations Peoples to speak for themselves under international law.
UNDRIP’s guiding principles can and have been used by a state’s national courts to judge a government’s actions in cases involving First Nations and other Indigenous peoples’ rights. For example, the Queensland Court of Appeal commented that UNDRIP ought to influence domestic interpretations of the human rights obligations held by the Australian State towards First Nations Peoples. UNDRIP has also been referred to in litigation in the 2012 High Court proceedings in Maloney v The Queen [2013] HCA 28, as well as the 2010 High Court of Australia decision in Wurridjal v Commonwealth [2009] HCA 2.
Similar influence has been noted internationally: one month after the adoption of UNDRIP, Chief Justice Conteh of the Supreme Court of Belize handed down a decision which explicitly applied UNDRIP, finding that Belize was obligated by the Constitution and also international law to recognise, respect and protect Maya customary land rights.
Prof. Megan DavisThe dismissal of the UNDRIP as mere soft law denies the way in which the Declaration is already having an impact throughout the world.
Whilst acknowledging the important place of UNDRIP in protecting and promoting First Nations Peoples individual and collective rights, it is also important to note that the international human rights instrument has not been well received by all First Nations Peoples, and is heavily criticised by certain Indigenous scholars in particular. Irene Watson, Professor of Law and Tanganekald, Meintangk and Boandik woman, argues that UNDRIP positions First Nations and other Indigenous peoples within the boundaries of states – states which continue to determine all aspects of First Nations life – and criticises the failure of UNDRIP to centre Indigenous knowledges.
Similarly, Shawnee/Lenape scholar Steven Newcomb argues that UNDRIP fails to address and in fact upholds the root cause of the problems that First Nations and other Indigenous peoples face: that is, the paradigm of domination and dehumanisation which modern international law is predicated on.
The right to self-determination is arguably the most central right enshrined in UNDRIP, and one that has major implications for how First Nations and other Indigenous peoples everywhere are able to assert their agency and freely determine their relationships to colonial and settler colonial states. It is, in some sense, the right from which all other rights flow.
Article 3 of UNDRIP explicitly states that “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
So what does self-determination really mean, and what does it look like in practical terms?
Amy Maguire, a senior lecturer in international law, calls self-determination “a right with many faces”. Maguire explains that while self-determination fundamentally entails the right of a people to choose their own form of political organisation and relationship to other groups, it also goes beyond this notion of political control to extend “full rights in the cultural, economic and political spheres”, including the right of a collective “to preserve its cultural, ethnic, historical, or territorial identity” and to “maintain and strengthen their distinct political, legal, economic, social and cultural institutions” (while also participating in the institutions of the wider state, if they choose to).
The right to self-determination can include claims to independent statehood. It also includes the right of the group to choose their form of government. Ultimately, each group of people exercising self-determination possess the right to choose how self-determination manifests according to their own particular circumstances and priorities.
Former Murdi Paaki chair Sam JeffriesOur mob believe that true self-determination is making the decisions about what you feel is important to you.
Larissa BehrendtThe terms ‘sovereignty’, ‘self-government’ and ‘self-determination’ are often used interchangeably to describe the political aspiration of Indigenous people to have more control and say in the issues that affect their lives.
