This section builds on Part 1 of this series to provide a theoretical basis for the final instalment (part 3 – to come).
Self-determination: law or resurgence — or both?
International law promotes the principal of equal treatment and self-determination, which includes peoples’ rights to freely pursue their social, cultural and economic development aspirations. This principle is provided in Articles 1 and 55 of the Charter of the United Nations (the Charter), Article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 3 of the Universal Declaration on the Rights of Indigenous Peoples (UNDRIP), all of which underscore the intention of member States to uphold that principle. However, for indigenous self-determination, Article 46 in the UNDRIP imposes a restriction on interpretation of the Declaration. This suggests that in signing up to the UNDRIP member states considered recognition of indigenous self-determination as symbolic matter rather than a commitment to actively pursue, consequently locating colonisation as something in the past rather than accepting or acknowledging its ongoing effects (Corntassel, 2012, p.92).
Notably, New Zealand did not officially sign up to the UNDRIP until 2010 – three years after it was introduced and signed by 144 other member states. Interestingly, China voted in support of the UNDRIP despite not recognising Indigenous Peoples in the territories it proclaims sovereignty over, including Taiwan. However, New Zealand was not alone. Neither Canada nor the U.S. signed the UNDRIP at that time. Unsurprisingly then, New Zealand’s action to date parallels the virtue signalling of other members in its non-implementation of any of the articles. And whilst the New Zealand government announced earlier in 2019, its intention to “develop a plan of action to drive and measure New Zealand’s progress towards the aspirations” of UNDRIP (Mahuta, 2019), it framed the articles as aspirations rather than firm commitments, arguably heightening the presumption of symbolism and creating ambiguity around what the resulting action plan will actually do.
Domestically, many Indigenous Peoples entered treaties during the early contact period to preserve their tribal sovereignty, as settler populations and demands on resources grew. In New Zealand, the key instruments were He Whakaputanga o te Rangatiratanga o Nu Tireni (He Whakaputanga or the Declaration of Independence) and Te Tiriti o Waitangi (Te Tiriti), and in North America the Silver Chain Covenant and the Treaty of Amity, Commerce and Navigation (Jay Treaty). However, these treaties and declarations commonly lacked legal standing later in settler courts attracting rulings that would serve to abrogate their rights for generations to come. For example, in Wi Parata v Bishop of Wellington (1877), the New Zealand Supreme Court declared Te Tiriti a nullity erasing any ability to rely on it against the injustices of the Crown. Similarly, in Francis v the Queen (1956) the Supreme Court of Canada held that the Jay Treaty had no legal effect because it had not been incorporated into domestic legislation. Common across white settler courts was the erosion of Indigenous Peoples rights as settler governments took hold of stolen territories.
Politics of Recognition and International Indigenous Economic Law
As noted in part 1, the question as to whether self-determination of Indigenous Peoples is actionable through international law or law at all, is disputed at length from scholars of both legal and non-legal disciplines. For instance, Jeff Corntassel (2012) rejects the politics of recognition (i.e. legal ot State recognition of indigenous rights) in favour of a “responsibility based ethic grounded in relationships to homelands and community”. He argues this approach avoids the limitations accompanying State recognition (i.e. settler determined findings about Indigenous Peoples) (p.93). Corntassel (2012) insists that Indigenous Peoples do not claim rights, instead they assert responsibilities that are sourced from their relationships with the natural and spiritual worlds and it is through these responsibilities that their rights emerge (p.92). Additionally, Corntassel (2012) considers sustainability an inherent element of indigenous self-determination and that this is achieved through practicing “every day acts of resurgence” (pp.92-93). Ani Mikaere (2011) shares a similar view emphasising that Māori rights as tangata whenua of New Zealand derive from Māori having occupied the lands for generations and “having developed an intimate connection with this environment, and an intricate set of relationships to regulate our place within it” (p.123-146).
So how might we understand indigenous rights to self-determination outside the legal institutions we have become accustomed to?
In the New Zealand context, te kawa o te marae (the protocol of marae) provides a useful example of everyday acts of resurgence with many non-indigenous peoples also understanding and respecting that marae operate according to processes and protocols grounded in a tikanga (values) that governs people’s behaviours and roles on the marae. This is a result of Māori continually practicing their culture, emphasising the importance of cultural maintenance for sustainable indigenous self-determination. It also exemplifies how over time everyday acts can shift mind-sets – where indigenous rights can be seen as grounded in indigenous relationships to people and place and not as decided in the court room or dictated by the pens of parliament.
In an international trade context, resurgence could be demonstrated through restoring traditional international relations practices too. For instance, the Kaswentha – a treaty agreed between the Haudenosaunee Confederacy (an alliance between the Mohawk, Oneida, Cayuga, Onondaga, and Seneca Nations) in Canada and European settlers during the early 1600s, set out the guiding principles that would govern their relationship amid growing tensions over the fur trade (Philpott, 2019, p.162-63). These principles expressed through the ‘Two-Row Wampum belt’ represented:
…a canoe and a ship travelling down a river side-by-side. The canoe holds the Haudenosaunee peoples, cultures, customs and laws, while the ship houses European settlers and their ways of life. The principles of the Kaswentha provide that the vessels travel together in a spirit of friendship and mutual respect.
(Philpott, 2019, p.162-63)
The Kaswentha illustrates the value traditional customs offer the contemporary international trade framework and the potential to radically shift how nations and peoples engage with each other for economic cooperation. Enabling Indigenous Peoples to introduce these practices as acts of resurgence complements the existing international law framework that is predicated on the promotion of peace and friendly relations between nations (see Art 1, the Charter) while retaining the cultural distinctions of the Indigenous Peoples entering into any negotiations.
Indigenous methods of establishing relationships puts values upfront, bringing the notion of responsibilities to each other and their own values systems to the fore in a humanising and transformative way rather than reducing relationships in trade to mere transactions.
In contrast to Corntassel’s responsibility based ethic that looks away from the law as a source of rights for Indigenous Peoples, Sergio Puig (2019) looks toward international indigenous economic law, as a developing body of work that he considers to operate as a shield and sword for the protection and advancement of indigenous rights, respectively (p.1302-1303). Similar to Corntassel (2012) who differentiates indigenous self-determination (relationships based) from state sovereignty (rights based) (p.92), Puig (2019) distinguishes indigenous rights from human rights, expounding Indigenous Peoples rights as distinctly rooted in unjust political and economic factors resulting from colonisation (p.1245).
Puig’s (2019) way around the over reliance on human rights instruments is to look to international economic treaties (p.1304). For example, he notes how the General Agreement on Tariffs and Trade provides a range of exceptions that permit states to impose restrictions on trade, such as taking any necessary measures to protect public morals which operates as a shield for their protection (Puig, 2019, p.1304) . He references the EC-Seal Products case (EC-Seals cited in Puig, 2019), in which the European Union (EU) relied on the public morals clause under Art XX(a) GATT to defend a claim brought against it by Canada and Norway. The dispute concerned the EU Seal Regime that introduced a ban on the import and export of seal products because it discriminated against other indigenous groups and producers of similar products with an exception clause only for the Inuit Peoples of Greenland, for whom seal hunting remains a tradition. Although the WTO Appellate Body upheld that the exception was discriminatory in part because the EU had not made ‘comparable efforts to facilitate the access of the Canadian Inuit to the IC exception as it did with respect to the Greenlandic Inuit’ it considered the EU Seal Regime was necessary to protect public morals but the chapeau requirements were not met. However, as Puig (2019) highlights, the AB left open the ability of the EU to make the exception WTO compliant (p.1304-1305). Canada’s attempt to protect the rights of its Inuit Peoples in this case, is also worth noting, as it adds to the deepening dialogue emerging from States, providing potential geopolitical levers for Indigenous Peoples to draw on.
While Puig (2019) focuses on international economic treaties as a source for change, his argument could equally extend to specific bilateral or multilateral trade agreements where the changes in mandate occur domestically. For example, the Treaty of Waitangi Exception Clause contained in all New Zealand’s contemporary trade agreements acts as a shield to protect Māori treaty rights (MFAT, n.d. a), whereas Chapter 19 of the Agreement between New Zealand and the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu on Economic Cooperation (ANZTEC) acts as a sword to advance indigenous to indigenous economic and cultural exchange. Using Puig’s argument in this way also brings the obligations of settler governments within closer proximity to its Indigenous Peoples. This provides a resonance to Corntassel’s responsibility based ethic by centring the communities affected in the agreements made between States. Therefore, these two theories could act as complementaries rather than be cast as antagonists, to enable direct relationships within and between Indigenous Peoples and foreign states by building on apparatuses such as the ANZTEC Chapter 19.
However, adopting international economic law as a basis for protecting and advancing indigenous rights potentially suffers from similar weaknesses to the human rights law approach. That is, the governance and rules still depend on systems and structures that have perpetuated the injustices of settler governments against Indigenous Peoples. Be that as it may, earlier treaties and agreements such as He Whakaputanga, Te Tiriti and the Jay Treaty present clear explications of indigenous ancestors recognising the value of having their rights to their territories and resources confirmed and notified internationally for the ongoing and sustainable benefit of their uri (descendants).
Despite some clear weaknesses to work through, I still consider that international indigenous economic law could provide an enabling function for achieving indigenous rights. Different courts, tribunals and governments have recognised, protected or interpreted indigenous rights and practices in various ways and to variable degrees. However, the growing body of international indigenous economic law in conjunction with a responsibility based ethic grounded in the everyday acts of resurgence we already see, could benefit from an agglomeration effect of sorts. That is, the growing level of political interest in indigenous rights and the moral capital it attracts could provide a useful lever for Indigenous Peoples to cash in on the political capital that in recent times Canada and New Zealand governments at least, have electorally banked in their favour. Moreover, unlike human rights laws, international economic law has a more practical effect because often there are financial incentives for settler governments to uphold the commitments it makes in them, as well as political incentives, such as avoidance of reputational harm at both the domestic and international level. After all, a government seen to not uphold its economic obligations would struggle to secure the trade benefits it seeks in future trade agreements and could attract legitimate trade restrictions.
Agreement between New Zealand and the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu on Economic Cooperation 2013.
Charter of the United Nations 1945.
Corntassel, J. (2012). Re-envisioning resurgence: Indigenous pathways to decolonization and sustainable self-determination. Decolonization: Indigeneity, Education & Society, 1(1), 86-101.
European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (2014, May 22) WT/DS400/AB/R, WT/DS401/AB/R.
Francis v. The Queen  S.C.R. 618.
General Agreement on Tariffs and Trade 1947.
He Whakaputanga o te Rangatiratanga o Nu Tireni 1835.
International Covenant on Economic, Social and Cultural Rights 1966.
Karnuth v. United States, 279 U.S. 231 (1929).
Le Dressay, A., Lavallee, N., and Reeves, J. (2010). First Nations Trade, Specialization, and Market Institutions: A Historical Survey of First Nation Market Culture” Aboriginal Policy Research Consortium International 72. Retrieved from: https://ir.lib.uwo.ca/aprci/72
Mahuta, N. (2019, Apr 7). Indigenous experts advise on Declaration plan. Press Release. The Official Website of the New Zealand Government. Retrieved from: https://www.beehive.govt.nz/release/indigenous-experts-advise-declaration-plan
MFAT, (n.d. a) Understanding CPTPP: Protections. Wellington: New Zealand Foreign Affairs and Trade. Retrieved from: https://www.mfat.govt.nz/en/trade/free-trade-agreements/free-trade-agreements-in-force/cptpp/understanding-cptpp/protections
Mikaere, A. (2011). Colonising Myths, Māori Realities. Wellington, New Zealand: Huia Publishers.
Philpott, A. (2019). The ship is not the only vessel on the river: Revisiting first nations’ mobility rights under Article III of the 1794 Jay Treaty. Appeal, 24, 157.
Puig, S. (2019). International Indigenous Economic Law. UC Davis Law Review 52:3, 1243-1316.
Silver Chain Covenant 1600s.
Te Tiriti o Waitangi 1840.
Treaty of Amity, Commerce and Navigation 1764.
United States ex rel. Diabo v. McCandless, 18 F.2d 282 at 283 (D. Pa. 1927).
Universal Declaration on the Rights of Indigenous Peoples 2007.
Waitangi Tribunal. (2014). Te Paparahi o Te Raki Inquiry, Wai 1040.
Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72.
Yablon-Zug, M. (2008). Gone But Not Forgotten: The Strange Afterlife of the Jay Treaty’s Indian Free Passage Right. Queen’s L. J. 33, 565.