UN Declaration on the Rights of Indigenous People
The UN Declaration on the Rights of Indigenous Peoples combined the efforts of many indigenous peoples across the world including Ngāi Tahu wāhine Carolyn Bull and the late Irihapeti Ramsden (Murchie), who were involved in its drafting.
In 2007, New Zealand refused to the sign the declaration. The then-Labour government said it was incompatible with New Zealand’s constitution, legal framework and the Treaty of Waitangi. The move surprised many indigenous communities around the world.
But in 2010, New Zealand signed, making it one of the last four countries to affirm the declaration. The remaining countries – Australia, Canada, and the United States – have now all signed, with the US being the final signatory.
NZ Prime Minister John Key was quick to play down any ensuing political backlash and possible practical effects of the declaration. He described it as “a non-binding, aspirational goal that does not supersede New Zealand’s law or New Zealand’s constitutional arrangements”.
However, parliament and the judiciary are not always good bedfellows.
In November, the New Zealand Court of Appeal cited the UN declaration in its Takamore v Clarke decision, which ruled in favour of the wife of the late James Takamore being able to bury him where she wanted and not back in Ngāi Tūhoe country, as is the iwi custom. However, the court also developed a “workable compromise” to conform to the Treaty of Waitangi and the UN declaration. (See Tom Bennion Takamore v Clarke, page 46)
Myrna Cunningham Kain, president of the United Nations Permanent Forum of Indigenous Issues, says governments try to water down the declaration’s potency because it means properly acknowledging the rights of indigenous peoples.
“Governments don’t want people to know their rights because they don’t want to respect people’s rights.”
Cunningham Kain, from the Miskito tribe in Nicaragua, says the declaration connects indigenous peoples around the world. She says for New Zealand, where there is already a treaty, the declaration can serve to enrich existing agreements and look at other areas that aren’t covered – a comment that was proven prophetic in the case of the Takamore v Clarke “workable compromise” reached by the Court of Appeal in November.
She says the declaration is about full-and-effective participation, collective rights and self-determination. It covers social development, human rights, health, education, culture and the environment.
“To exercise the right to education, education should be taught in our language, teach our history and our culture.”
Similarly, she says it is not just about indigenous people accessing healthcare, but about accessing indigenous health treatment options and the recognition of indigenous illnesses.
Roger Jones from the Assembly of First Nations (Canada) says he would like to see standards developed for the declaration that are consistent with the values of indigenous peoples.
In his speech to the general assembly, Ngāi Tahu kaiwhakahaere Mark Solomon said the declaration’s strength was it codified indigenous peoples’ visions.
“The declaration describes and protects the intergenerational visions that have carried our identity since time immemorial. And by doing so, the declaration puts indigenous peoples at the centre.
“We all know all too well that our rights can be taken away in an instant; but that it takes many lifetimes to restore rights, to reclaim the right and ability to live as indigenous peoples.”
Solomon says as case law develops in New Zealand, so will the power of the declaration increase.
The declaration attracted differing views throughout the National Congress of American Indians annual meeting in November. The international workshop on the declaration was standing room only, as case studies that had used the declaration to good effect were presented.
In some countries it has been used to gain recognition of indigenous rights. In Belize in 2007, its Supreme Court cited the declaration when it recognised the land and resource rights of the Maya people.
But outside political forums there is little awareness of the declaration.
Walking about the market and information stalls, all the vendors TE KARAKA spoke to had no knowledge of the declaration, even those who were embroiled in disputes with local and central governments. However, once the declaration was explained, many were enthusiastic about its possible use to bolster their causes.
Cunningham Kain concedes there is low awareness about the declaration and there is also poor communication from the UN to indigenous communities. She says there is also an understandable resistance from indigenous communities to listen to, or follow global agencies such as the UN, when they are already often at odds with their own local governments.
Finally, she adds that the power of the declaration is in it being used by indigenous group and incorporated into their programmes.
Such is the case of the Navajo Nation in the US. The Navajo have taken steps to incorporate principles of the declaration into education, natural and cultural resource protection, and into improving relations with bordering towns and cities.
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