PROTECTING INDIGENOUS RIGHTS AT HOME: A COMPARATIVE ANALYSIS OF THE WAY FORWARD FOR DOMESTIC IMPLEMENTATION OFTHE .

• Author: Wood, Chloe

I INTRODUCTION

As three of the only four States to vote against the introduction of the United Nations Declaration on the Rights of Indigenous Peoples ('UNDRIP' or 'Declaration')' when it was adopted by the United Nations General Assembly in 2007, it is perhaps unsurprising that Canada, New Zealand and Australia have not taken many concrete steps to implement UNDRIP into their domestic laws and policies. However, in recent years there have been a number of encouraging developments towards greater domestic implementation of UNDRIP in each of these three jurisdictions. In 2021, Canada passed legislation which will formally implement UNDRIP into its domestic law. The government of New Zealand has announced it is beginning work on implementation through a comprehensive national action plan. In Australia, UNDRIP is likely to inform developments in establishing representative governmental bodies and in treaty making processes.

This article will explore these recent developments in the domestic implementation of UNDRIP. Part II of this article will provide some background to the drafting and adoption process of UNDRIP and will summarise the key rights set out in UNDRIP and the importance of domestic implementation. Part III of the article will examine key developments in the domestic implementation of UNDRIP in Canada, New Zealand and Australia, particularly focusing on the specific implementation of UNDRIP into government policies, legislation, and case law. Part IV of this article will then look to the implementation of UNDRIP in the future and will seek to analyse the effectiveness of various means of domestic implementation. Ultimately, this article argues that comprehensive, practical domestic implementation of UNDRIP is a critical step towards ensuring UNDRIP provides a strong legal framework for the protection of the rights of indigenous peoples.

II BACKGROUND TO UNDRIP

1. The drafting and adoption process

   The process of drafting UNDRIP spanned approximately two decades. (2) The Declaration is often lauded for the substantial role indigenous peoples had to play in its creation, with thousands of representatives of indigenous nations, peoples and communities participating in the process. (3) However, the process of drafting a comprehensive declaration of indigenous rights was not a simple one. Davis writes that the negotiations between indigenous peoples and States were antagonistic and at times intractable, (4) and Isa notes that the negotiations were intense and controversial. (5)

   Finally, on 13 September 2007, the United Nations General Assembly voted on the adoption of UNDRIP. One hundred and forty-three States voted in favour, 11 States abstained, and just 4 States voted against adopting the declaration--Canada, the United States, New Zealand and Australia. All of these States have similar histories of British colonial settlement and each of their delegations expressed concern at the potential reach of UNDRIP, in particular the implications of guaranteeing rights to self-government and how those rights might undermine their existing democratic systems. (6) For example, the New Zealand delegation noted that rights to resources, redress and veto were 'fundamentally incompatible with New Zealand's constitutional and legal arrangements'. (7) Australia also raised concerns about territorial sovereignty, stating that the Australian government would not support a concept that could be construed as threatening 'the territorial and political integrity of a State with a system of representative government'. (8) Each of the dissenting States also took the position that UNDRIP did not represent customary international law and that the Declaration was a non-binding, aspirational instrument with no legal force. (9)

   Despite the positions taken by the dissenting States, the adoption of UNDRIP is regarded as being a landmark development for the protection of the rights of indigenous peoples, (10) and was welcomed by the United Nations Secretary General as 'a historic moment when UN Member States and indigenous peoples have reconciled with their painful histories and are resolved to move forward together on the path of human rights, justice and development for all'. (11)

2. Key principles of UNDRIP

   UNDRIP sets out the rights of indigenous peoples in a number of key areas with 46 articles covering rights to land, natural resources, cultural identity, self-government and self-determination. Former Special Rapporteur on Indigenous Rights, James Anaya, has remarked that the Declaration elaborates upon 'fundamental rights of universal application in the specific cultural, historical, social and economic circumstances of indigenous peoples'. (12) Indeed, many of the principles of UNDRIP are reflected in other international instruments, including human rights treaties, labour treaties and environmental treaties. (13) It has also been argued that a number of the rights in UNDRIP are part of customary international law. (14)

   UNDRIP is unique in several key respects. First, it encompasses recognition of economic, social and cultural rights and civil and political rights within the same document. It also places significant emphasis on concepts of equality and self-determination. (15) In so doing, UNDRIP recognises the importance of collective rights, a significant departure from the traditional conception of rights as belonging to individual rights holders. (16) As Glazebrook notes, UNDRIP also has an important function in explicitly recognising the historic injustices that indigenous people around the world have suffered arising from colonisation, loss of their traditional lands, and policies like Australia's Stolen Generations policy. (17) There are articles that expressly provide for redress for these past injustices, including redress for forced assimilation policies, (18) the taking of cultural property without consent, (19) the loss of means subsistence and development, (20) and the loss of their traditional lands. (21) In all of these respects, UNDRIP is arguably a more progressive and innovative instrument than many other international human rights instruments. (22)

   Barelli notes that the rights and principles set out in UNDRIP have been praised for their strong content, innovative character within the broader framework of ethno-cultural group rights, and capacity to embrace indigenous understanding of collective rights and the right to self-determination. (23) However, there are also critics who have argued that the Declaration does not go far enough in addressing the problems faced by indigenous peoples, for example by not incorporating a sufficiently fulsome and meaningful right to self-determination and for its arguably narrow conception of the principle of free, prior and informed consent. (24) Davis also notes there has been extensive debate over UNDRIP's content, legal interpretation and how it balances different human rights concerns (for example, how it balances the tension between individual and collective rights in the context of indigenous women's rights). (25) Among other critiques are concerns that UNDRIP is an instrument of Western liberal thought imposed on non- Western peoples and that it fails to liberate indigenous peoples from the State-centric system of international law. (26)

   Although it is beyond the scope of the present article to explore all of these significant issues, it is important to acknowledge that UNDRIP is an evolving document which is open to a broad range of different potential legal interpretations and critiques and of course to differing views and levels of support amongst indigenous peoples themselves.

3. Implementation of UNDRIP

   One of the common challenges for all international human rights instruments is their practical implementation, particularly for a non-binding General Assembly Resolution such as UNDRIP. Importantly, the preamble to the Declaration calls upon States to comply with and effectively implement all of their obligations as they apply to indigenous peoples under international instruments, in particular those related to human rights, in consultation and cooperation with the peoples concerned. (27) Article 38 of the Declaration further provides that 'States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration'. (28) In 2014, the World Conference on Indigenous Rights produced an Outcome Document incorporating similar commitments on behalf of States to implement the Declaration. (29)

   UNDRIP has been implemented in a number of different ways at the international and regional levels. The Expert Mechanism on the Rights of Indigenous Peoples ('EMRIP'), was established as a subsidiary body of the Human Rights Council in 2007 with the specific functions of advising the Human Rights Council on the rights of indigenous peoples as set out in the Declaration and to assist States to achieve the goals of the Declaration. (30) Preexisting bodies such as the United Nations Permanent Forum on Indigenous Issues and the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples are also increasingly using UNDRIP in their work monitoring indigenous rights issues. (31) United Nations treaty bodies and regional human rights courts also refer to UNDRIP when interpreting international human rights standards. (32) UNDRIP has also been an important tool of reference in the development of international and regional legal policies and as a tool for advocacy for the greater protection of indigenous rights. (33)

   Several States have also taken important steps towards implementing UNDRIP at the domestic level. In 2007, Bolivia became the first State to explicitly incorporate UNDRIP into its domestic law/' A number of other Latin American States have also recognised indigenous peoples' rights through a range of constitutional and legislative...