About Indigenous Peoples

Following last nights debate on ‘whether the New Plymouth District Council should have designated Māori Wards’, I thought it might be worthwhile posting my thoughts on the concept of Indigenous Peoples. Why? Because the persistent analogies to minority groups within the dominant group inadequately address the issue of what it means to be indigenous. This to be fair happened on both sides of the debate. The side opposed to Māori Wards attempted to ignore the colonial history and the downstream effects of colonisation on identity, representation and structural power differences. On the side in favour, attempts to get those opposed to reflecting on how different NZ society might have looked absent the women’s suffrage movement. I appreciate the angle Metiria Turei was taking, and I wholly endorse that sentiment. However, I think we need to be careful about lumping the rights of Indigenous Peoples in with marginalised sections of the dominant group. This is explained further below,

I am mindful that the concept of ‘indigeneity’ is itself controversial – including among those self-identifying as Indigenous Peoples. However, here is an [abridged] excerpt from a paper I wrote regarding Indigenous Peoples and International Trade Law, that sets out some of that literature, which I think is relevant to last nights debate.

 [From my paper: Enabling Indigenous Peoples Economies Through the WTO].

Indigenous Peoples represent around six per cent of the global population.[1] However, international recognition of Indigenous Peoples rights is a relatively new phenomenon.  Prior to World War II, attempts by indigenous representatives, such as Tahupotiki Wiremu Ratana (Māori, Aotearoa New Zealand), to have their voices heard at the (then) League of Nations were denied.[2] Frustrated by the continued decimation of their human rights, Indigenous Peoples have embarked on what might be termed a renaissance. Although the mood or resistance has been building over the past three decades, evidenced by the creation of indigenous centric institutions within the United Nations system, the emergence and persistence of grassroots groups suggests a new progeny is born to carry the mantle of resistance through the next phase of globalisation.[3]

Etymologically, the word indigenous derives from the Latin indigenia meaning ‘sprung from the land’, ‘a native’ or literally ‘in-born’ or ‘born in (a place)’.[4] Others have interpreted its Latin roots as meaning ‘belonging naturally to the soil’.[5]The etymology provides a basis to formulate a legal definition but is weak on its own since it evades broader considerations necessary to make any definition meaningful, at least to those the definition is attempting to describe. It is also too wide, encompassing the rights of any person born in a particular place, thereby ignoring issues pertinent to the unique experiences of Indigenous Peoples and failing to capture the political history that renders the need for special recognition of indigenous rights. However, consensus on a formal definition in the literature has not been forthcoming, and attempts to define or to develop practical criteria for the legal recognition of Indigenous Peoples at international law, were either criticised for their assimilatory underpinnings,[6] or have lacked broad support to give any definition or characterisation any firm legal status.[7] While some descriptions incorporate distinct cultural and social factors, others attach significance to histories, language and political subjugation to the dominant culture.[8] One of the most widely cited descriptions of Indigenous Peoples, is the working definition, proposed by the Special Rapporteur on The Issue of Discrimination against Indigenous Peoples, Jose Martinez Cobo in what is commonly referred to as the Martinez Cobo Study.[9] The Special Rapporteur emphasised that Indigenous Peoples have ‘historical continuity with pre-invasion and pre-colonial societies that developed on their territories’, and are ‘distinct from other sectors of the societies now prevailing in those territories’.[10] He also suggested they ‘are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems’.[11]

Prior to the Martinez Cobo Study, the International Labour Organisation (ILO) had attempted to construct a definition in their Convention on Indigenous and Tribal Populations (No. 107) although it was criticised and later replaced by the Convention on Indigenous and Tribal Peoples in Independent Countries (‘the Convention No. 169’)[12] due to the integrationist approach the earlier text advocated.[13] However, only 20 countries have ratified the new convention, which arguably minimises the legal significance it might have had at international law.[14]

Article 1 of the Convention No.169 distinguished Tribal peoples from Indigenous Peoples but affirmed that self-identification as Tribal or Indigenous was regarded as the fundamental criterion for determining the groups to whom the provisions of the Convention would apply’.[15] The Convention No. 169 definition is useful because recognises the adversity afflicting Indigenous Peoples, by incorporating the ideas of self-determination and the existence of a community will that existed prior to colonisation and still prevails – even if in a softer form than traditionally,  following a history of colonisation and its subsequent effects.[16] Additionally, it emphasises self-identification, consultation and participation, and anti-discrimination as core principles, [17] which supports the systems Indigenous Peoples have in defining their own ways of identifying as belonging to their particular indigenous group.[18]Although few countries adopted the Convention No. 169, no new definitions have emerged in international law to supplant it and while it only has legal effect for those countries that ratified the convention, it at least provides a supplementary reference to assist in international jurisprudence.

Arguably, the Convention is also broad enough to capture the many Indigenous Peoples of the world, but narrow enough to exclude groups or people attempting to disingenuously attain indigenous status. This co-opting of indigeneity is worth noting since it is used in various situations to negate the special status afforded to Indigenous Peoples within national legal frameworks. Given the language of co-option, that infiltrates the political landscape both locally and globally, [19] it is unsurprising that Indigenous Peoples consider definitional issues a matter of their own concern rather than that of States or international bodies.[20] This is a point to bear in mind when attempting to define, classify, or characterise indigenous rights. In reference to Māori Academic Ani Mikaere, attempts should be mindful of avoiding recreating the colonised in the image of the coloniser’ (emphasis added).[21]

Unfortunately, some pro-indigenous but non-indigenous individuals, groups or organisations who advocate on behalf of Indigenous Peoples can stifle Indigenous Peoples voices. This amplification of non-indigenous voices on indigenous issues prompted Chief Tashka Yawanawa of the Yawanawa tribe in Brazil to lament: [22]

We are tired of anthropologists, environmentalists, church-related organizations, and other specialists speaking for us and using us for their self-interest. Please respect our self-determination to make our own decisions.

As illustrated above, determining what constitutes ‘indigenous’ is both complex and contentious. However, Lindsay Short argues, it is ‘increasingly important as the international community moves towards greater legal recognition of indigenous legal rights’. [23] Short warns though of the unintended consequences of framing any legal definition too precisely, such that it potentially excludes certain communities the particular law was intended to assist.[24] A remedy to guard against the risk of accidental exclusion might be found in the work of Siegfried Weissner who suggests disaggregating human collectivities into ‘organic’ and ‘non-organic’ groups to appreciate the spaces Indigenous Peoples occupy.[25] He does this to emphasise that Indigenous Peoples are distinct from marginalised groups that ‘do not have the same interest in sharing all aspects of life’ and who are ‘primarily concerned about not being discriminated against by the ruling elites’ (emphasis added), as alluded to above, in part, in discussing the problems of pro-indigenous non-indigenous voices speaking on behalf of Indigenous Peoples.[26] Weissner suggests that organic groups make a conscious choice to live in a community together such as a ‘nation’ or as a ‘people’ (emphasis added).[27] He proposes that Indigenous Peoples are, therefore, inherently organic because they are ‘collectivities that are characterized by the desire and practice of sharing virtually all aspects of life together’.[28] Moreover, Weissner insists that classifying Indigenous Peoples as organic groups ‘facilitates inclusion in the legal regime of autonomy of not only indigenous communities with distinct territories, but also those [I]ndigenous [P]eoples who have lost most of their land base, thus constituting largely personal associations’.[29] Mikaere also appears to draw on this concept of ‘organic’ groups. She writes that the cumulative effect of knowledge building connects people to ‘their environment, and to one another within a framework of shared beliefs and understandings about the way in which the universe is ordered’.[30]

 

In the debate, the opposition referred consistently to the UDHR but mostly ignored UNDRIP. Winston Peters decried the use of racial attributes as justifications for representation.  Willie Jackson, in my view, made the strongest point in emphasising that the Māori Wards are not just about having people who have Māori ancestry, but are about having representatives that advance kaupapa Māori. His words resonate with the idea of conceiving of Māori (and all other Indigenous Peoples) as an organic group, not a marginalised sector of a dominant whole.

Recognising the rights of Indigenous Peoples as distinct from rights of marginalised groups is not about advocating a superior status. It is about recognising that Indigenous Peoples have rights as ‘a Peoples’. That dominant groups already exercise rights as ‘peoples’ in formulating, implementing and enforcing the rules that legitimised the formation of their States, constitutions, institutions and both national and international legal frameworks. These rights as a ‘Peoples’ are distinct from ‘individual human rights’.

 

Footnotes: 

[1]     United Nations Department of Economic and Social Affairs State of the World’s Indigenous Peoples ST/ESA/328 (2009) at 7-8. [SOWIP]

[2]     SOWIP, at 2.

[3]    Megan Davis “International Trade, the World Trade Organisation and the Human Rights of Indigenous Peoples” (2006) 8 Balayi: Culture. Law and Colonialism 1, at 1.

[4]     Douglas Harper “Indigenous” Etymology Online (accessed 18 October 2014) <www.etymonline.com/index.php?term=indigenous>

[5]    Jagannath Dash and Rabindra Nath Pati “The Indigenous and Tribal People To-Day: Issues in Conceptualisation” in Tribal and Indigenous People of India: Problems and Prospects (APH Publishing, New Delhi, 2002) at 3.

[6]     International Labour Organisation Convention on Indigenous and Tribal Populations 1957 (No. 107), [ILO Convention No. 107].

[7]   International Labour Organisation Convention on Indigenous and Tribal Peoples 1989 (No. 169) (entered  into force on 05 Sep 1991) [ILO Convention No. 169].

[8]     Lindsay Short “Tradition versus Power: When Indigenous Customs and State Laws Conflict” (2014) 15 (1) Chi J Intl L 376 at 380.

[9]     SOWIP, at 2.

[10]    United Nations Study of the Problem of Discrimination against Indigenous Populations E/CN.4/Sub.2/1986/7 Add. 4 (prepared by the Special Rapporteur, Jose Martinez Cobo) (1986/7), paras [379-382], [Martinez Cobo Study], as cited in SOWIP, at 15-16.

[11]    Martinez Cobo Study, at 15-16.

[12]    ILO Convention No. 169.

[13]    ILO Convention No. 107.

[14]    ILO Convention No. 169.

[15]    ILO Convention No. 169,

[16]    ILO Convention No. 169, art 1.

[17]    For example, see ILO Convention No. 169, arts 3 and 4 (on discrimination), and arts 6 and 7 (on consultation and participation).

[18]    For a general discussion see Natalie Coates “Who are the Indigenous Peoples of Canada and New Zealand?” (2008) 12 (1) Journal of South Pacific Law 49-55.

[19]   See for example Hon Trevor Mallard’s comments on attempting to proclaim indigenous status in parliament in 2004 amid the Foreshore and Seabed tension in New Zealand: (3 August 2004) 619 NZPD 14522

[20]   Short, at 380-381.

[21]   Ani Mikaere Colonising Myths and Māori Realities: He Rukuruku Whakaaro  (Huia Publishers, Aotearoa New Zealand, 2011), at 206

[22]    Tashka Yawanawa “Indigenous Leader to NGOs: No One Speaks For Us – Or Thinks For Us” Ecosystem Marketplace: A Forest Trends Initiative (online, Brazil, 19 October 2012) <http://www.ecosystemmarketplace.com/pages/dynamic/article.page.php?page_id=9381&section=home&eod=1&gt; , as cited in First Peoples Worldwide “FPIC without FPIC” (online, 9 August 2013) <http://firstpeoples.org/wp/fpic-without-fpic/&gt;.

[23]   Short, at 380.

[24]    Short, at 380.

[25]    Siegfried Wiessner “The Cultural Rights of Indigenous Peoples: Achievements and Continuing Challenges” (2011) 22(1) EJIL 121 at 128.

[26]    At 128.

[27]    Ibid.

[28]    Ibid.

[29]    Ibid.

[30]    Mikaere, at 317-322.

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