By Dominic O’Sullivan, JP PhD, Associate Professor of Political Science, Charles Sturt University
(bio at bottom of article)
In post-settler liberal societies like Australia, Canada and New Zealand, reconciliation between the state and indigenous nations supposes trust and political inclusivity. It supposes just terms of political association, recognising that the human right to self-determination belongs to indigenous peoples as much as it belongs to anybody else.
My book ‘We Are All Here to Stay’: citizenship, sovereignty and the UN Declaration on the Rights of Indigenous Peoples, published last week, shows the potential for a different and genuinely post-colonial politics. This potential lies in the human rights approach to self-determination that the Declaration sets out.
Reconciliation involves the state accepting that colonialism transgresses justice. For example, denial of the human rights to language and culture, to property and sometimes even the right to life itself. Reconciliation requires sorrow, recompense and resolve to not repeat these affronts to indigenous people’s capacity to live as indigenous, to retain authority over their own affairs and enjoy the same fundamental freedoms of other citizens.
Corntassel argues that in Canada, reconciliation requires indigenous people to ‘forgive and forget’. However, the Declaration, which Canada, like Australia, New Zealand and the US originally opposed, but later changed its position, is explicit. States must prevent and provide redress for the deprivation of indigenous integrity as distinct peoples, for the dispossession of their lands and other resources and for their forced assimilation (article 8 (2)).
Forgiveness is conditional on genuine restitution. Not just in terms of material compensation, but in terms of the political arrangements intended to give effect to the two overarching and fundamental political rights that the Declaration affirms.
Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State (article 5).
The right to self-determination is well-established, though still elusive for many indigenous populations. The Declaration, however, brings clarity to the meaning of that right and gives international authority to indigenous arguments for its implementation. The Declaration’s contribution to reconciliation is that it makes unmistakable connections between sorrow and the policy outcomes that governments pursue. But it also makes connections between sorrow and the ways of doing politics.
The Declaration affirms indigenous authority over their own affairs, exercised through their own institutions and according to their own values and priorities is an essential expression of the human right to self-determination. At the same time, it establishes the right to participate in state policy-making, not as subjects of the colonial power, but as people who have the right to bring their distinctive aspirations and ways of thinking about policy outcomes to state decision-making. There is a right to substantive political presence and influence. In New Zealand, these rights are partly given effect through guaranteed Maori seats in parliament and are consistent with the Treaty of Waitangi.
The Treaty of Waitangi, signed between Maori Chiefs and the British Crown in 1840, gave Britain the right to establish government, confirmed Maori authority over their own affairs and resources and gave Maori the rights and privileges of British subjects, which in modern times is accepted as embodying the capacities of citizenship. The agreement is, however, contested.
A contemporary Maori claim that the state has breached the agreement through a policy that restricts Maori capacity to make their own decisions in schooling is potentially resolved by the Declaration affirming that:
Indigenous peoples have the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning (Article 14 (1)).
States shall, in conjunction with indigenous peoples, take effective measures, in order for indigenous individuals, particularly children, including those living outside their communities, to have access, when possible, to an education in their own culture and provided in their own language (Article 14 (3)).
The presumptions are clear: that schooling is not a tool of assimilation and schooling’s purposes for Maori are for Maori, not the state, to determine.
In 2019, the Waitangi Tribunal, an administrative Tribunal established to consider Maori claims that the state has breached the Treaty, found that racism was a principal cause of poor Maori health outcomes. Its recommendations for greater Maori decision-making authority in relation to health care would significantly change the ways in which New Zealand’s public health system operates. They would strengthen the administrative arrangements that the Declaration imagines; strengthening the human right to health, as well as rights to housing and economic security.
Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions (Article 23).
Policy measures giving effect to the Declaration’s 14th and 23rd articles would give substantive expression to sorrow. They would have a compensatory effect. They would show genuine interest in not repeating those acts and omissions of the state that have contributed to poor educational and health outcomes, for example.
Reconciliation also requires that indigenous peoples have reason to trust the state. That they are able to see the state serving their interests as much as it serves the interests of other citizens.
Public institutions serve the interests of those who design them and of those who work in them. This is why Maaka and Fleras argue that the human right to self-determination requires indigenising the bureaucracy. It is also why is the Waitangi Tribunal’s health inquiry recommended increasing the Maori health workforce as an urgent imperative.
In Australia, the Commonwealth Government has rejected an indigenous proposal to amend the Constitution to guarantee a permanent and representative indigenous Voice to Parliament. It has also rejected the idea that it should negotiate treaties with indigenous nations as instruments of reconciliation, and as instruments to set out the terms on which the right to self-determination is exercised.
The Declaration does not prescribe the ways in which indigenous people should enjoy the right to participate and influence the workings of the state. The proposed Voice to Parliament is not unanimously accepted by indigenous peoples, but it does have comprehensive support and the moral authority to at least attract the state’s proper consideration.
Although, the state of Victoria and the Northern Territory are entering treaty negotiations, the Commonwealth’s rejection of the idea makes it difficult for indigenous people to imagine the state reflecting indigenous people and their interests. It gives reason to question of just how realistic reconciliation might be as a political aspiration.
In contrast, in 2019 the Canadian Province of British Columbia passed legislation requiring that the Declaration is implemented.
In 2012, the Canadian Truth and Reconciliation Commission which investigated the violent assimilationist intent of the Residential Schools policy, recommended that Canadian governments adopt each of the Declaration’s 44 articles.
The British Columbian law requires regular reporting to parliament on progress towards implementing the Declaration and envisages implementation agreements with different first nations.
The law claims an ‘overarching priority’ of including First Nations’ people in public decision-making and economic development, and a British Columbian Minister promoted the legislation as being concerned with ‘ending discrimination and conflict – and instead ensuring more economic justice and fairness’. For a representative of the British Columbian Assembly of First Nations ‘it’s about coming together as governments, as people seeking to find common ground’.
The law does not guarantee justice. Its implementation plan is still to be tested and judicial interpretations will shape its impact.
However, as one example, its explicit interest in ensuring that First Nations’ people are involved in decisions about mining on indigenous lands provides a marked contrast with the Australian state of Queensland which, in 2019 overrode the Wangan and Jagalingou indigenous nation’s objections to a mining development by simply extinguishing its title to the land and transferring it to the mining company.
The Declaration, instead, requires good faith negotiations to establish indigenous ‘free, prior and informed consent’ before a mining project may proceed. The strength of the British Columbian law, in this respect, is yet to be tested and will be a major determinant of just how effective that law is as a protector of the indigenous right to self-determination.
Reconciliation requires substantive policy measures. It also requires secure institutional arrangements to protect indigenous authority over their own affairs, on the one hand, and substantive and distinctive participation in state decision-making on the other. It requires measures that secure indigenous people’s trust and confidence in the state and secures their acceptance that self-determination, and its constituent human rights, belong not by the government’s benevolence but by indigenous humanity.