A Critical Reading of the Declaration on the Rights of Indigenous Peoples

Abstract

The United Nations Declaration on the Rights of Indigenous Peoples (2007) (the Declaration) may be considered one of the pinnacle international legal texts in relation to the Indigenous populations, but is fundamentally deeply flawed. The fact that Indigenous people are forced to utilise the rights dialogue and framework to engage with the State is ultimately implicitly assimilationist. This is because human rights are a construct which are inimitably linked to white Western culture, and to insist upon the rights dialogue as it currently exists is to unavoidably suppress any native dialogue Indigenous populations may choose to express themselves in. The article explores three reasons for the flawed basis of the Declaration. Firstly, as an aspirational document, State parties are not bound in their membership of the Declaration, their sovereignty is paramount, and there is no distinct mechanism within the Declaration that may be utilised by Indigenous populations for recourse against the State and nor does the Declaration translate into enforceable domestic law. Secondly, human rights documents are inherently informed by value judgments and different parties (ie, State versus Indigenous) place different values on the ranking of rights. Finally, contrary to the functioning of many Indigenous communities, human rights are centred on the individual (and those who may compromise the rights of the individual), whereas Indigenous cultures add a third element - the land.

There are different possibilities for addressing this. One way would be to focus on justice, whereby justice can be a process from which a just result, whatever that might be, can flow. There are two foundations to justice as a process - equality and truth. Secondly, Indigenous legal scholar Larissa Behrendt supports the continued use of a rights framework for State/Indigenous dialogue, but perhaps not in its current form. If rights are held by those with power, who feel a reluctance to expand the circle of those who are protected by those rights, then it is distinctly possible that the rights framework is significantly more expansive and culturally diverse than is currently practiced. Thirdly, and in contrast to Behrendt, Indigenous scholar Irene Watson argues that to even engage in a rights discourse is to utilise an alien language and to participate in the suppression of Indigenous voices and culture. All possibilities are compelling, especially in their comparison where it becomes clear that the true issue is a failure to ensure Indigenous input.