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The UN Declaration on the Rights of Indigenous Peoples: a Mixed-Model Interpretative Approach

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The UN Declaration on the Rights of Indigenous Peoples: a Mixed-Model Interpretative Approach The UN Declaration on the Rights of Indigenous Peoples: A Mixed-Model Interpretative Approach by Andrew Kaponga Clifford Erueti A thesis submitted in conformity with the requirements for the Degree of Doctor of Juridical Science Faculty of Law University of Toronto © Copyright by Andrew Kaponga Clifford Erueti 2016 The UNDRIP: A Mixed Model Interpretative Approach Andrew Kaponga Clifford Erueti Degree of Doctor of Juridical Science Faculty of Law University of Toronto 2016 Abstract This dissertation offers a distinctive means of reading the key international instrument for promoting indigenous peoples’ rights, the UN Declaration on the Rights of Indigenous Peoples adopted by the UN General Assembly in 2007. The current orthodoxy is to read the Declaration as containing human rights adapted to the indigenous situation. This is supported by a particular reading of the political history of the Declaration – that is, that initial claims based on anti-colonialism advanced by Northern indigenous advocates were abandoned in favor of a more pragmatic human rights model. However, this reading does not do full justice to the complexity and diversity of indigenous peoples’ participation in the Declaration negotiations. I provide a fresh account of the political history of the international indigenous movement as it intersects with the Declaration negotiations. What this reveals is tension between two movements that can be broadly separated along the lines of the North and South. Northern indigenous peoples were the originators of the international movement and sought to shoehorn their sovereignty-based claims into an international project. They relied in particular on anti-colonial justifications drawn from the UN-directed decolonization movement (decolonization model). But they were soon joined by a vibrant and skilled Southern movement of indigenous peoples representing Latin America, Asia and Africa. This movement placed greater emphasis than their Northern counterparts on human rights and especially the right to culture (human rights model). One of my core arguments is that contrary to conventional accounts, the decolonization model was not eclipsed by the human rights model but maintained throughout the Declaration ii negotiations. And it is the decolonization model that accounts for what I describe as the self- determination framework in the Declaration. This argument is developed through chapters 1- 3. As a result the Declaration reflects two normative models, aimed at the two different regions: human rights for the South; and decolonization for the North (the mixed-model). The principal benefit of this bifurcated reading of the Declaration is that it enables both the Northern and Southern indigenous movements to gain the rights they seek from the Declaration. But how, precisely, does this political history translate into a legal justification for this mixed-model? In Chapter 4, I argue that the mixed model is also supported by legal and political justificatory arguments. The challenge of my mixed-model is to avoid the decolonization model being absorbed by the human rights model through the practices of interpretation. I hope to assist advocates to reposition their arguments and set out two case studies in chapter 5 that seek to show the potential implications of the decolonization model. iii Acknowledgments The University of Toronto Faculty of Law has provided me with terrific support from start to finish. Initially, Prof Darlene Johnson took me under her wing in 2007 as my lead supervisor and I’m grateful for her advice and providing me with a solid foundation. I had heard the Law Faculty was a great environment for graduate work and I was impressed with the program and variety of talks and symposia available for students. David Dyzenhaus, Mariano Prado, Julia Hall and Whittney Ambeault ran a tight ship and kept me on my toes. It was only two years into my studies that I was offered a position as Amnesty International’s adviser on indigenous rights in the International-Secretariat, London. It seemed like too good an opportunity to test out my ideas and observe the international movement in action. I would like to thank my colleagues at Amnesty for the many ideas generated in late-night conversations on indigenous rights but especially the Gender, Sexuality and Identity team (Madhu, Stephanie, Lisa, Kathryn), Shanta Martin, the Asia (Abbas Faiz) and Americas regional programs (Fernanda Doz Costa, and Guadalupe Marengo) and Canadian indigenous rights researcher, Craig Benjamin. I would also like to thank the communities I worked with over that time but in particular, the indigenous activists and communities in the Chittagong Hill Tracts, Bangladesh. In 2009, Karen Knop became my supervisor after Darlene ventured west to British Columbia University. I think the experience at Amnesty really helped but I recall when I provided Karen Knop with my draft chapters that they needed a lot of work. Karen introduced me to Courtney Jung’s work, The Moral Force of Indigenous Politics, and then Karen Engle’s book, The Elusive Promise of Indigenous Development. And it was only after reading these works that I began to see the real possibilities for the dissertation. Engle of course, opened up the door by being the first to talk about the regional tensions within the international movement. And I’m fortunate that she didn’t explore in detail the impact of the Asian and African indigenous movements thus allowing space for my dissertation to emerge. Reading these and related works enabled me to explore new areas of political and legal theory and this added a freshness and novelty to the research. And I now apply much of this theory to my new work as a lecturer at the Faculty of Law, University of Auckland and I think my students enjoy it. I also strive to emulate the qualities that I saw in Karen as a supervisor: encouragement and enthusiasm, good humor and strong, sound and clear advice. Karen has iv also been very supportive of my partner’s, Claire Charters, academic work and we both have the utmost admiration for her. I also have Professors Patrick Macklem and Douglas Sanderson to thank for great insights and advice that helped me to complete the final stages of the dissertation. I’ve always been a fan of their work, and when reading Douglas’s piece on Redressing the Right Wrong it struck me how close we are in our arguments – it’s about political sovereignty not only land rights! I’d like to say thank you to those who provided me with support and inspiration and ideas over the years. James Anaya stands out. I’ve always admired his ability to be both a leading scholar and effective indigenous rights advocate. Practically anyone who has ever written about international indigenous rights is responding in some way to his seminal work, Indigenous Peoples in International Law. I recall stumbling into his Tucson offices with my backpack as a junior academic on my first sabbatical, and sensing that this was the centre of it all. He and his family and the Indigenous Peoples Law and Policy Program at the University of Arizona have always made me and Claire welcome in Tucson. Others I’d like to acknowledge are: Edward Durie, Paul G McHugh, Richard Boast, Tony Angelo, Bob Dugan, Virginia Grainer, Alan Ward, Bob Clinton, Robert Williams, Gina Cosentino, Brenda Gunn, Kirsty Gover, Matthew Palmer, my colleagues at the law faculties of the University of Auckland, Waikato and Victoria, Tracey Whare, Moana Jackson, Claire Breen, Linda Te Aho, Matiu Dickson, Brad Morse, Kent McNeil, Alex Xanthaki, Benedict Kinsgbury, Janet McLean, Catherine Iorns, and Paul Meredith. And thanks to Chiaretta Giordano and Kyle Levenberg for your advice. A special thank you to the DOCIP team and Pierrette Birraux in Geneva – I relied a great deal on the interventions by states, indigenous peoples and NGOs compiled by DOCIP during the Declaration negotiations and this dissertation could not have been completed without this fantastic resource. I’ve been accompanied by good friends along the way keen to talk about my dissertation, and tease me for constantly carrying it around London pubs. Suresh, Shona, Lawrence, Claire, Justin, I finally finished it! To my whanau, Mum, Dad, Andy and Kath, Trina, Caity, Claire and Hema and Claire’s family Barbara, Richard, Jack and Manfred and Cristal – my love and v gratitude. I cannot remember the number of times Barbara Charters has swiftly landed in the midst of our chaotic life ready to take command and lead us to safe ground. During the tough times I would often call on Hema for strength. We miss you and this dissertation is for you. To Max and Mia – thank you for putting up with your Dad tapping away at his laptop during our 5 and 3 respectively years together. It’s over now. We can go out and play. And of course my partner in life, Claire Charters. She radiates intellect, fun and love. I’m in constant amazement at how she manages to keep all of the balls up in the air – social, professional and family life. I stand in awe of you. Claire never doubted I would complete my thesis. I often did. But it was Claire who got me across the finish line. And what a journey we have had around the globe and back again (and probably off round the globe many more times). You made life an adventure again for me and I feel blessed to be with you, Max and Mia. vi Contents Acknowledgments ................................................................................................................... iv INTRODUCTION: .................................................................................................................
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