Regional Indigenous Rights, International Human Rights Violations

As first inhabitants with special attachment to their land, indigenous groups live in very distinctive societies and are granted additional rights, but is it fair when they violate human rights as part of traditional practice? Indigenous people as a minority have a set of rights separate from the general population, but ensuring those rights has been a challenge on an international level. The classification of a peoples as “indigenous” is still not legally defined. Although attempts were made in Article I of the United Nations Declaration on the Rights of Indigenous Peoples in 2007, there is no clear and concise definition provided today. Since the declaration is not a human rights treaty and nowhere in the document is there a working definition of what it means to be indigenous, the UN declaration is of low priority to the global community. Moreover, indigenous groups and their governments are in constant dispute over whether indigenous rights or economic rights takes precedent. The following case studies will illustrate that indigenous rights is not only unfair to the rest of the population but can create inequality amongst indigenous groups around the world as well. Overall, current indigenous rights protection is inherently unjust and changes should be made regionally to secure the rights of different cultural groups from country to country.

In their defense, indigenous peoples have the right to preserve their culture whether it mean protecting their native land or their indigenous status. Their primary instruments include the International Labour Organization No. 169 and the UN Declaration on the Rights of Indigenous Peoples. According to Article I of the declaration, indigenous rights are both collective and individual rights (Lecture, 9/17). Article 8 specifically states that indigenous peoples have the right “not to be subjected to forced assimilation or destruction of their culture,” while Article 11 and 12 clarify the right to practice and teach indigenous culture and traditions (www.un.org). In the case of the Bagua region in Peru, for instance, disagreement over land rights issues demonstrates the persistence of indigenous Peruvians. In June 2009 violent protests erupted when the government pushed for national development by selling natural resource lands to multinational corporations. Because the lands are considered to be indigenous homelands, the indigenous groups argue that government policy was undermining their land rights. In that sense, giving up their native lands is in every way coercing indigenous groups to assimilate and contributing to the destruction of their culture. Indigenous logic is that in order to preserve their culture, it is necessary they be entitled to the historic lands that belonged to them when they first arrived. As natives, losing the land that they have come to value traditionally is violating their human rights as indigenous peoples. Further, as stated in Article 11 the right to “maintain, protect and develop the past, present and future manifestations of their...archaeological and historical sites” is an essential part of “[practicing] and [revitalizing] their cultural traditions and customs” (www.un.org). Therefore, if the government's goal is ensuring the economic rights of the general population then it is at the loss of the indigenous rights of these groups.

Still, a series of cases in Australia involving both indigenous and national politics further illustrate the conflicts over land ownership. In the first case of Mabo v. Queensland in 1988, Eddie Mabo claimed that the Meriam people had native title rights and challenged previous court rulings regarding the state's “annexation” of aboriginal land (Lecture, 9/29). Because a specific group was targeted, the argument primarily concerned whether the legal procedures to obtaining land violated the Racial Discrimination Act of 1975. Here, Mabo made a case that the Queensland government was using improper legal procedures and thereby discriminating against the Meriam people. In the end, the High Court of Australia ruled in favor of Mabo and, most importantly, set the stage for the second case in 1992 (Lecture, 9/29). In Mabo v. Queensland No.2, Mabo and his people wanted more clarification to the proper legal procedures in terms of land ownership. The proper procedure, they established, included defining and determining native title and measuring compensation for turning over land (Lecture, 9/29). The landmark case ultimately resulted in the Native Title Act of 1993.

Together, these two case studies show that the Australian government has a place for indigenous politics and indigenous rights are respected. However, this is merely one example of a land rights issue in Australia where the court ruled in favor of the indigenous group. This victory does not amount to the court siding with them in future cases, nor does it mean that the conflicting views between indigenous groups and their governments is resolved. In fact, the case of Calder v. British Columbia in Canada is one such incident in which the court was so conflicted over aboriginal land rights that no actual decision was made in the end. Calder of the Nisga'a tribe argued that land rights of his people were not properly extinguished, but his claim was dismissed in the first appeals court. When it reached the Canadian Supreme Court, however, the ruling was split with one side ruling that aboriginal land rights were in fact not properly extinguished and the other uncertain as to whether it should even a subject in court (Lecture, 10/1). Thus, indigenous rights protections differ from state to state, influenced by many factors particular to a country—political system, population size, geographical location, reason of dispute, historical background of the people, legal instruments, cultural and religious differences, traditional practices, etc. Indigenous rights in that way cannot possibly be fair: how can, say, rights of identity be a privilege of an indigenous group in one state and denied in another? The unique circumstances and different degrees of protection cannot be made universal, and neither can the rights that come with it. In that vein, it is necessary that indigenous rights be strengthened regionally across all states, that is, the distinctions of groups must be considered before decisions are made and court rulings come into effect.

In contrary, the government's claim for undermining indigenous and aboriginal rights is that of national security, development, and the general well-being of its people. Their perspective is that protecting indigenous rights does not create equality for the rest of the country's population. In any case, the state's take on indigenous rights, the idea of giving more rights to certain peoples and not others, is that it not only creates inequality but negatively contributes to “multiculturalism”. Taufa Vakatale, Deputy Prime Minister and Minister for Education and Technology of the Fiji Islands, argues that multiculturalism does “not create national unity” and “marginalises the cultural rights of the indigenous people” (Vakatale, Multiculturalism vs Indigenous Cultural Rights, 69). One critique of protecting any type of minority right is that it encourages separation of groups, which is very much the view of Vakatale. She goes on to state that minorities that refuse to assimilate are “racist” (Vakatale, 74). Although her point is rather extreme, it is in many ways representative of the government's standpoint that indigenous rights would hurt the country more than it would help. In giving extra rights to indigenous people, the state perceives it as an exchange for the economic rights of the general population and stands in the way of national progress. The government has a responsibility to promote national growth, but when indigenous groups are holding onto their land and preventing its use for modern developments then the rest of the population is impacted in the end. In the larger picture, securing majority rights is a priority over protecting indigenous groups that make up a smaller percentage of the population. Because of this reluctance to understand the opposing view, the governments and indigenous peoples continue to clash.

All in all, the protection of indigenous rights is unfair across states due to the cultural differences that define each group. Many cases reinforce that the governments and indigenous peoples are unwilling to compromise, which can often result in protests and violent break ups. Indigenous people claim that they have the right to preserve their culture and not assimilate, while their government claims that their practices and rights prevents it from protecting the general population's rights. Nevertheless, both sides produce valid arguments but they must work towards coexistence in order to reach equality and security on both ends. Regional indigenous rights is of low priority on the international agenda, but this can change if those rights were more specific to what is protected in different groups. The purpose of indigenous rights is to ensure justice to the natives of a region, and it needs to become more established if that goal is going to be achieved.