Aboriginal Societies and International Law A History of Sovereignty Status and Land

5
Aboriginal Societies and International Law: A

History of Sovereignty, Status, and Land
Overview
The history of aboriginal peoples status in international law in the period before
World War II runs in parallel to the municipal histories that have been the focus of this
book. These legal historiesthe international one and those of the several common
law jurisdictionsshared themes particularly once all systems moved into a formalist
conception of law and (settler-) state sovereignty at the end of the nineteenth century.
After the war that parallelism transformed into an increasingly symbiotic engagement
as international law took a more active interest in states treatment of their population,
the aboriginal included. These developing norms in international law informed and
influenced domestic practice. Similarly, modern state practice in Australasia and North
America influenced the direction and shape of international law. The international
backdrop became an increasingly influential factor in shaping national law.
The historical pattern shared by the international and municipal legal systems was
one in which the systemic supposition of absolute territorial state sovereigntyan
essentially nineteenth- and early twentieth-century imperativetransformed after
World War II into a more complex and juridified conception where law increasingly
modified and curbed the exercise of settler-state authority over aboriginal peoples. In
both the international and municipal systems the legal pattern was one of growing
settler-state accountability for its management of aboriginal affairs. At the most general
level, these systems witnessed an increasing legal recognition and accommodation of
the claims of aboriginal peoples. The applicability of those international norms to some
populations in Asia, Africa, and South America remained contentious. However there
was never any doubt of their relevance to the aboriginal societies of North America and
Australasia. Indeed, state practice in those jurisdictions wasand to a significant extent
remainsan influential factor in the normative development of international law.
As in the several common law jurisdictions, the gradual construction after the war of
a specific international regime for aboriginal peoples reflected a broader rights-based
dynamic inside the system itself. Just as municipal public law was becoming more
concerned with the rights of its citizenry at large, so too did international law direct its
attention to the position of the individual and groups within states. Given that more
general orientation of international law after the war, it would have been more unusual
had provision for aboriginal peoples not emerged.
Aboriginal Societies and the Common Law. P.G. McHugh.

Oxford University Press 2004. Published 2004 by Oxford University Press.
290 Aboriginal Societies and the Common Law
1. The juridical rehabilitation of aboriginal peoples

The early idea of international law in the sixteenth and seventeenth centuries was one of
jus gentium, the law of nature or nations. This was a universal normative code applying
across all levels of humanity, independent of and higher than the positive law or deci-
sions of temporal authorities.1 The writings of the Salamanca Divines and Grotius
showed the belief that the legal principles governing the conduct of European princes
extended to their activity in non-Christian parts of the world. Indeed, these writings have
been sometimes described as the beginnings of international law, a sign that what some
later historians of international law were to regard as its intellectual origins came directly
from debate over the treatment of aborigines.2 Whilst law and theology merged in the
Salamanca debates, a more secular version of the jus gentium appeared in Grotius who
defined it as a dictate of right reason in conformity with morality and the social nature
of human beings. Whatever the source of the perceived higher authority, its acceptance
provided the jurisprudential grounds for theorists to conceive of and examine norms
from a fundamentally humanist, moral perspective, and to withhold the imprimatur of
law from the acts of earthly sovereigns if found to be against the perceived moral code. In
addition, the focus of the naturalist theorists went beyond the concerns of sovereigns to
those of all levels of human interaction, although in varying degrees.3
This was a view about the nature of law that reflected the political complexity
of a Europe that was still playing out the medieval notion of a single kingdom of
Christendom whilst moving towards the more secularized, post-Westphalian notion of
the independent territorial state. An earlier chapter considered the way in which this
medieval notion of governance influenced Britains imperial practice in Asia and the
New World during the seventeenth century. Nonetheless even once this secularization
was in train and the intellectual residue of the Holy Roman Empire crumbling, the
European states kept justifying evangelically their relations with tribal peoples in terms
of a civilizing mission. That theme recurred throughout the seventeenth and eighteenth
centuries as the European powers avowed their duty to spread the Gospel and to civilize
the tribal peoples of the globe. Although such protestation was usually little more than
a mask for self-interested ambition, it was a regular and recurrent feature of the high
period of European imperialism. It indicated that the European states believed them-
selves obliged to justify their treatment of tribal societies, even if that was through a
tokenistic code they had invented and spoke only amongst themselves. Spanish
1
James Anaya, Indigenous Peoples in International Law (New York: Oxford University Press, 1996) 11.
2
Scotts influential text The Spanish Origin of International Law: Francisco de Vitoria and His Law of
Nations (Oxford: Clarendon Press, 1934) argued that Vitoria was the true father of international law, rather
than Grotius who (according to AP DEntreves in Natural Law: An Introduction to Legal Philosophy (reprint
edn, 1994) at 520) seems to have been first given that title by Pufendorf (163294). However a caustic
appendix in Nussbaums Concise History of the Law of Nations (1954) at 296 criticized Scotts agenda as
Jesuitical (Scott was a Protestant). Christopher Rossi argues in Broken Chain of Being: James Brown Scott and
the Origins of Modern International Law (The Hague: Kluwer Law International, 1998) that Scott wanted to
re-establish the moral content of international law and that this plenitudinism was his real agenda and one
achieved in the modern philosophy of international law.
3
James Anaya, The Rights of Indigenous Peoples and International Law in Historical and Contemporary
Perspective (1990) 1989 Harvard Indian Law Symposium 191.
Aboriginal Societies and International Law 291
behaviour in Meso-America, gruesome and with all its farcical pantomimed legality,
was explicable on no other basis. Similarly the use of aboriginal protectors in Spanish,
Dutch, and English colonial practice over several centuries demonstrated the acceptance
of an obligation to guard and protect the vulnerable tribal societies.
Whatever the aboriginals (largely passive though) central role may have been in
helping establish the notion of a law governing the conduct of princes, the scope of the
jus gentium reached beyond the matter of their treatment. In the late eighteenth and early
nineteenth centuries it was believed, for example, that individuals as well as states
were bound by international law and were liable for offences against the law of
nations such as piracy or assault on diplomats.4 The judgments of Sir William Scott in
the court of Admiralty during the early nineteenth century, to return to an English
example of an earlier chapter, conceived international law in that manner. During
the nineteenth century and after the Congress of Vienna (1815), however, that idea
changed into a positivizing one that saw international law as the law binding states in
their relations with one another. Oppenheims highly influential textbook5 concluded
briskly a century later (1912), since the Law of Nations is a law between States only and
exclusively, States only and exclusively are subjects of the Law of Nations.6 By then, at
the beginning of the twentieth century, international law was state-centred, mostly
disregarding the face of humanity beyond the sovereign.7 One American writer, Charles
Hyde, subscribed so strongly and confidently to this position that he re-wrote (1922) the
history of international law by that model, insisting that tribal peoples had never been
regarded as holding any juridical personality.8 This absolutist, highly positivistic approach
flew in the face of international practice, which was more complex and which determined
juridical capacity in particular contexts rather than by facile subscription to that simplistic
all-or-nothing formulation.9 However, it was symptomatic of the intellectual climate of
the time where it was believed that law could be scientifically identified and applied, and
in respect of which the sovereignty of the territorial state was the notional foundation.
One might originate the positivist conception of the province of international law
from the influence of Vattel during the second half of the eighteenth century, although
it was not until nearly a century later that its full implications came into such sharp
4
4 Blackstones Commentaries 6673 (Welsby edn, 1854). Also US v Smith 18 US (5 Wheat) 152 (1820)
(piracy); Respublica v De Longchamps 1 US (1 Dall) 111 (1784) (assault on French Consul-General).
5
On Oppenheims influence see M Schmoeckel, The Internationalist as a Scientist and Herald: Lassa
Oppenheim (2000) 11 European J of Intl L 299. Ben Kingsbury argues powerfully that this mainstream
legal positivism with its ostensible separation of law from morals and from politics was a concept of law best
suited to Oppenheims moral and political values: Legal Positivism as Normative Politics: International Society,
Balance of Power and Lassa Oppenheims Positive International Law (2002) 13 European J of Intl L 401436.
6
International Law (2 vols, New York: Longmans, Green and Co, 19056) I, 27.
7
James Anaya, A Contemporary Definition of the International Norm of Self-Determination (1993) 3
Transnational Law and Contemporary Problems 131, 135. Also Tom J Farer, The United Nations and
Human Rights: More Than a Whimper, Less Than a Roar in RP Claude and BH Weston (eds), Human
Rights in the World Community: Issues and Action (2nd edn, 1992).
8
IC Hyde, International Law Chiefly as Interpreted and Applied by the United States (Boston: Little Brown,
1922) 163164. This is another example of the tendency of which I spoke in the opening chapters, of
lawyers chauvinistically failing to historicize their method of thought. Hyde wrote as though international
lawyers had always thought of law his way.
9
DP OConnell, International Law (2nd edn, 2 vols, London: Stevens, 1970) vol I, 8082.
state-centred focus. Vattel had transformed the law of nature and nations from a single
universal code for humankind into a dichotomy of natural rights for individuals and
natural rights of states. From that it became possible to construct a legal regime focused
only on the rights of states, as the (translated) title of his treatise The law of nations
(1765) itself made plain. Vattels conception of statehood and its extension to non-
Christian societies were discussed in an earlier chapter. Yet, he also made plain one of
the consequences of statehood and its loss. He said that once a people . . . has passed
under the rule of another [it] is no longer a state, and does not come directly under the
Law of Nations. Of this character were the Nations and the Kingdoms which the
Romans subjected to their Empire.10 The change was perhaps subtle but a distinct and
important reorientation. Vattel had written in the natural law tradition of Grotius and
Locke, but his separation of the state as an independent juridical subject supplied the
essential basis for the positivization of international law that followed. He articulated
the foundation of the doctrine of state sovereignty, which, with its corollaries of
exclusive jurisdiction, territorial integrity, and non-intervention in domestic affairs,
became the central principle of international law in the post-Vienna period.11
At the time Vattels work was published and making such an impact in the English-
speaking world,12 European nationalism was entering its own high century. In a world
where perceptions of independent nation-state sovereignty and identity were sharpening,
the idea of international law moved too. Itthe idea of international lawbecame
vastly more conscious of its own scope and of itself as a code dealing with the relations
between states.13 After Vienna, the international relations of the western states had
become vastly more sophisticated, encouraging movement towards a more rule-based
approach by which treaties set out the rights and duties of states.14 International law
began to form the idea of itself as a constructed code of rules.
An important manifestation of that positivization has been seen already, specifically
the emergence during the mid- to late nineteenth century of a juridical standard for
civilisation at international law.15 This standard, it should be re-emphasized, was not
founded upon a denial of the juridical status of independent tribal or non-Christian
societies. Rather, it set a threshold for the engagement in the full range of treaty-relations
between and among states (such as diplomatic relations, postal treaties and the like).
Indeed, the European powers had by then a long history of treaty-relations with
non-Christian societies and accepted that tribal societies had at least sufficient juridical
capacity to make a cession of sovereignty or lesser jurisdiction valid under international
law. For instance, in 1848 the noted jurist Joseph Phillimore described the Treaty of
Waitangi as possessing all the ingredients which Writers of the Law of Nations deem
10
Vattel, Le droit de gens (1765) (1916 edn) 12.
11
Anaya, Indigenous Peoples in International law, 15.
12
A Nussbaum, Concise History of the Law of Nations, at 156164 argues that Vattels influence on the
continent was much less significant than in England and the United States.
13
Nussbaum ibid 232 on the positivization of international law during the second half of the nineteenth
century and early twentieth, which he described as taking a rather crude form (at 276).
14
Ibid 186250.
15
CH Alexandrowicz, The Juridical Expression of the Sacred Trust of Civilization (1971) American J of
Intl L 149; G Gong, The Standard of Civilization in International Society (Oxford: Clarendon Press,
1984).
essential to establish the validity of such a compact, and his colleague Shirley Woolmer
agreed.16 Likewise in Rogers & Co (1854), an arbitral decision under the Convention
between Great Britain and the United States of 8 February 1853, the British
Commissioner Hornby held that Britain had acquired sovereignty over New Zealand
by cession from the Maori chiefs.17 The determination of the Anglo-American arbitral
tribunal in the William Webster case (1925) made that acceptance of Maori status even
clearer.18 The Final Act of the Berlin African Conference, to return to another example
from an previous chapter, was premised upon the recognized capacity of the African
chiefs to enter into treaties of cession or protection even whilst arrogantly proclaiming
the European states capacity to decide amongst themselves which European state that
would be.
The important consequence of that change in the conception of international law
was in the application of the theme of guardianship over tribal societies. The duty now
applied to what became called salt (or blue) water colonialism. It applied to an
imperial powers relations with uncivilized peoples beyond its borders but not to internal
colonialism. The overarching juridical consciousness of independent nation-state
sovereignty largely insulated states from any international accountability for their
treatment of tribal peoples within their boundaries, and put the guardianship theme
into this saltwater form. Those blue-water tribal societies not under European
sovereignty were to be shielded from the full brunt of international intercourse until,
by demonstrating their attainment of civilization, they could assume full international
stature. This meant that meanwhile a civilized power was able to protect the weaker
tribal nation from the wiles of the other powerful civilized nations. Koskenniemi
argues that the sharpened notion of sovereignty forged by European state practice in
the nineteenth century injected a liberal sensibility into international law that carried
into and influenced its path in the next century.19 Knowing and dealing with the
natives may have helped and systemically gentled that law, but that rubbing off did
not admit them to its realm proper.
The greatly increased use by European states of Protectorates during the late
nineteenth century was an expression of this guardianship role. Thus the Final Act of
the Berlin African Conference (1885) declared the obligations of European colonial
powers to watch over the preservation of the native tribes, and to care for the improvement
of the conditions of their moral and material well-being.20 The guardianship
obligation thus excused the Scramble for Africa. In 1921 the United States State
Department published a summary of colonizing nations practice towards indigenous
populations. Alpheus Henry Snow reported:
. . . that domination of distant communities by a Republic was permissible when needful and to
the extent needful, but only provided the state recognised and fulfilled the positive imperative
16
Texts in LA Chamerovzow, The New Zealand Question and the Rights of Aborigines (London: TC
Newby, 1848) appendix.
17
Record of the Proceedings of the Commissioners and Umpire FO 97/32: 125, 126. (This was brought to
my attention by the late Dr Geoffrey Marston.)
18
Award of 12 December 1925 (1926) 20 American J of Intl L 391.
19
Marti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 18791960
(Cambridge: Cambridge University Press, 2001) 98178.
20
Article 6, Final Act of the Berlin Africa Conference 18841885.
duty of helping these dominated communities to help themselves by teaching and training them
for civilisation, as the wards and pupils of the nation and of the society of nations.21
Snow also spoke of the guardianship duties a state owed aboriginal populations within
its territory. His talk was highly reminiscent of the non-justiciable trust that English
and colonial courts had developed in the late nineteenth century. Certainly he felt that
duty was outside the sphere of international law. He said:
the guardianship of aboriginal tribes implies not merely protection, not merely a benevolence
towards private missionary, charitable and educational effort, but a positive duty to direct legis-
lative, executive and judicial domination of aboriginals as minor wards of the nation, and equally
direct legislative, executive and judicial tutorship of them for civilization, so that they may
become on the shortest possible time civil and political adults participating on an equality in
their own government under democratic and republican institutions.22
One writer in this period, Lindley, broke ranks from the prevailing refusal to regard
subject aboriginal peoples as within the sphere of international law. The Acquisition
and Government of Backward Territory in International Law (1926) has become a clas-
sic text in modern times, yet, despite Lindleys historical acuity and sophistication, his
voice was solitary and largely unattended in his time. He argued that even if indigenous
peoples were not full subjects of international law, states could still become accountable
to each other for their treatment of them. Aboriginal peoples were at least, he believed,
objects of international law. His approach took the protestations and avowals by state
authorities of a guardianship duty as indicative of state practice and, hence, international
law. That position put him at odds with the powerful, reigning principle of absolute
state sovereignty. But even then, the form of international accountability he described
remained nation-to-nation, a scenario from which aboriginal peoples themselves
remained excluded.23
In the mid-twentieth century, the A-B-C Mandates system of the League of Nations
continued the saltwater notion of the sacred trust of civilisation, the phrase used in
article 22 of the Leagues Covenant (and the charter of the system).24 Trusteeship of
the United Nations also invoked that principle. There remained the notion of an
international obligation over vulnerable tribal peoples outside state frontiers, until it
was discredited by the decolonization movement in the final quarter of the century.
Even though the principle of state sovereignty rendered states unaccountable for
their treatment of aboriginal peoples inside their frontiers, the rhetoric of guardianship
as old as the Spanish conquest of the New World remained a feature of state practice as
the nineteenth century turned into the twentieth. It had been shorn of its juridical
character not by state practice in relation to aboriginal peoples (which remained
21
Alpheus H Snow, The Question and Practice of Aborigines in the Law and Practice of Nations (London:
22
GP Putnams Sons, 1921) 175. Ibid 108.
23
Mark F Lindley, The Acquisition and Government of Backward Territory in International Law (London:
Longmans, 1926) 324336. Anaya, above, 38, n 152 notes that the International Court of Justice declined
to recognize the juridical character of such trusteeship obligations operative in the late nineteenth and early
twentieth centuries, other than those arising from the League of Nations mandates system: South West Africa
(Phase 2) 1966 ICJ 61.
24
Wm Roger Louis, The Era of the Mandates System and the Non-European World in H Bull and A
Watson (eds), The Expansion of International Society, 201.
remarkably consistent, at least in the avowing, over three centuries of European

imperialism) so much as a statist and positivist perception of the sphere of inter-
national law.25
However one outcome of the positivization of international law was plain: in those
countries where a European state had assumed the sovereignty, the tribe was not a subject
of international law and was a legal unit only within the municipal sphere and to the
extent it had been therein recognized as such. In the Cayuga Indians Case (1926) the
British and American Claims Tribunal ruled that Great Britain could not maintain a
claim for the Cayuga Nation as such under the Treaty of 1814. Britain could advance a
claim only for the Cayuga Indians living in Canada on the basis of their British
nationality.26 Two years later in the Island of Palmas Case (1928) Arbitrator Max Huber
accepted that Dutch treaties with native rulers of the islands were not in the international
law sense, treaties or conventions capable of creating rights and obligations.27 This
denial of legal personality to indigenous peoples where a European state claimed
sovereignty over their territory continued in the Permanent Court of International
Justices ruling on the legal status of Eastern Greenland (1933). The court referred to
the failure of early Norwegian settlements in Greenland as a result of Inuit resistance.
However, it added:28
Conquest only operates as a cause of the loss of sovereignty when there is a war between two
states, and by reason of the defeat of one of them sovereignty over the territory passes from the
loser to the victorious state. The principle does not apply in the case where a settlement has been
established in a distant country and its inhabitants are massacred by the aboriginal population.
In the period before the Second World War, then, international law recognized the
statusthough a highly patronizing oneof tribal polities (such as those in Africa) in
the saltwater situation where a European power protected but did not claim
sovereignty over them.29 However, in keeping with the state-centred view of the
province of international law, tribal peoples lost whatever previous status they might
have held upon annexation by the European power. A states treatment of its own
citizenry was outside the sphere of international law, even though in the context of
aboriginal peoples the guardianship principle first articulated by the Spanish theologians
was still consistently avowed by the settler-states.
The minority protection provisions in certain treaties between European states
represented an exception to that general non-concern before World War II about
a states treatment of its nationals. These clauses made special provision for minority
populations and had been a feature of European treaty-making since at least the mid-
seventeenth century. They became more frequent in the period after the Congress of
Vienna, and particularly common after the Peace of Versailles (1917). During the early
25
See most fully Antony Anghie, Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-
26
Century International Law (1999) 40:1 Harvard Intl LJ 1. (1926) 6 RIAA 173, 179.
27
Palmas Island Arbitration (1828) 2 RIAA 831, 856.
28
(1933) PCIJ Rep, Series A/b, no 53 at 47.
29
Some sneered at the technical distinction between a Protectorate and sovereignty: T Baty, Protectorates
and Mandates (19211922) 3 British Yearbook of Intl L 109: Either an African protectorate means nothing,
or it means annexation.
seventeenth century European princes required unity of faith within their countries, a
principle embodied in the treaties of Westphalia. By the end of that century, however,
there had emerged exceptions to the principle that subjects had to follow the faith
of their king. These occurred in treaties of peace in which kings of different faith
resolved their territorial differences, such as the Treaty of Paris (1763) concluding the
Seven Years War. By the fourth article of this treaty the victorious King of Great Britain
agreed to grant to the inhabitants of Canada the freedom of the Catholic religion and
to give the most precise and the most effective orders in order that his new Roman
Catholic subjects may practice their religion according to the ritual of the Roman
Church and insofar as the laws of Great Britain permit it.30 The victor thus conceded
that the vanquished people were not to be required to change their religion, the
protection extending only within the territory transferred. After the Congress of Vienna
the minority protection clauses extended beyond religion (though that remained the
primary concern) to racial, linguistic, and national minorities. This practice peaked in
the period between the World Wars.31 Whereas before World War I the protection of
minorities other than religious ones was the exception, . . . it became the rule after the
war.32 The Permanent Court of Justice located these minority rights provisions in
the principle of equality. In Minority Schools in Albania (1935) the court identified two
elements behind the provisions:33
The first is to ensure that nationals belonging to racial, religious or linguistic minorities shall be
placed in every respect on a footing of perfect equality with the other nationals of the State. The
second is to ensure for the minority elements suitable means for the preservation of their racial
peculiarities, their traditions and their national characteristics. Those two requirements are
indeed closely interlocked, for there would be no true equality between a majority and a minor-
ity if the latter were deprived of its own institutions, and were consequently compelled to
renounce that which constitutes the very essence of its being as a minority.
Minority protection clauses like those were largely abandoned after World War II,
when their failings had been woefully plain. The clauses were selectively applied and
there were few institutional means of enforcing or monitoring their viability. Their
effectiveness was eroded by aggressive non-compliance and overwhelmed by the
competing and more powerful imperatives of nationalism, individualism, and assim-
ilation. The international community thus took a new tack after the war, hatching and
developing the human rights norms as a new means of recognizing minority rights.
The Universal Declaration of Human Rights (1948) signalled a more universal
approach towards minority rights, one that embraced all groups and their members
rather than only those specifically blessed with some protective clause. However, the
30
A similar clause had already appeared in article 14 of the Treaty of Utrecht (1713) by which France gave
Hudson Bay and Acadia to England: It has been expressly agreed that in all the territory and colonies which
by virtue of this treaty must be ceded or returned by the [King of France], the subjects of the said king will
have the liberty of leaving within a year with all their movable properties Those who, nevertheless, would
choose to stay and remain under the domination of Great Britain, must be able to enjoy the exercise of the
Roman Catholic religion, insofar as the laws of Great Britain permit it. On European state practice in the
post-Westphalia period see JA Laponce, The Protection of Minorities (Berkeley: University of California
31
Press, 1960) 2329. Laponce, above, 2933.
32 33
Ibid 30. Minority Schools in Albania (Advisory Opinion) 1935 PCIJ (ser A/b), no 64.
underlying approach of the Declaration was that of negative protection, protection

from discrimination rather than the positive obligations that had been common in the
pre-war minority rights provisions. Nonetheless, it plainly made a states treatment of
its own nationals a matter of international law. In part, that was a defensive reaction to
the invention at Nuremberg of crimes against humanity. However, the prospect of a
comprehensive code of human rights was also an announcement of the revised and
enlarged province of international law. It was not until 1966 that this code eventuated
in two Covenants, the first dealing with civil and political rights and the second cover-
ing social, economic, and cultural rights. These Covenants did not become law until
1976, but they contained provisions and mechanisms that aboriginal peoples would
use in the last quarter of the twentieth century.
There was another juridical theme that mixed with the developing international
norms of human rights and minority rights. This was the principle of self-determination.
Some have seen this as an Enlightenment principle founded upon the right of peoples
to participate freely and equally in determining the nature of their political organization,
a right often seen as exemplified by the American and French Revolutions.34 The
principle obtained some prominence before35 but it was not until after World War II
that any substantial normative development occurred in international law. The principle
of the self-determination for peoples appeared twice in the United Nations Charter
(although not in the Universal Declaration of Human Rights). As early as 1949 the
General Assembly had considered the position of the indigenous people of the
Americas by a reference to an ad hoc subcommission of the Economic and Social
Council (ECOSOC).36 However this inflamed a confrontation between the Soviet
bloc and the United States, the latter, after a prolonged ear-chewing by the former,
reminding ECOSOC that its agreement was required for any inquiry. Latin American
countries had been less circumspect and evidently had expected any inquiry to
vindicate accelerated absorption or assimilation of the native peoples and nationaliza-
tion of their lands.37 However, like the human and minority rights norms, this norm of
self-determination would become more resorted to by indigenous peoples in the last
quarter of the twentieth century. In any event, the United Nations Charter embraced
substantive statist precepts by including respect for the sovereign equality and
territorial integrity of states as the organizations founding principles.38 The General
Assembly adopted a Resolution in 1960 on the granting of independence to
colonial countries and peoples, advocating the speedy and unconditional end to
34
For example Umozurike O Umozurike, Self Determination in International Law (Hamden, Ct: Archon
Books 1972) 511. However the concurring opinion of Judge Ammoun in the International Court of Justice
described equality as part of the principle drawn from [t]wo streams of thought . . . established on the two oppo-
site shores of the Mediterranean, a Graeco-Roman stream represented by Epictetus, Lucan, Cicero and Marcus
Aurelius; and an Asian and African stream, comprising the monks of Sinai and Saint John Climac, Alexandria
with Plotinus and Philo the Jew, Carthage to which Saint Augustine gave new lustre. Legal Consequences for States
of the Continued Presence of South Africa in Namibia (South West Africa) (21 June 1971) ICJ 16, 7778.
35
For an account see Hurst Hannum, Rethinking Self-Determination (1994) 34 Virginia J of Intl L 1, 211.
36
GA Res 275, UN Doc A/900, 19 (1949).
37
RL Barsh, Indigenous North America and Contemporary International Law (1983) 63 Oregon L Rev
73, 80, n 27.
38
UN Charter, article 2, paras 1, 4, 7. Also Anaya, Indigenous Peoples in International Law, 41.
colonialism.39 Whilst supporting the saltwater approach, its potential resonance for
aboriginal peoples was strongand would grow stronger in the following years.
In the immediate post-war period, then, international law paid no attention
specifically towards indigenous peoples as a distinct juridical category. Self-determination
was seen almost entirely in the saltwater context. The human rights covenants
elaborating the Universal Declaration were not completed until 1966.
ILO Convention 107 (1957) represented an exception to that and specifically applied
the human rights norms as understood at the time to aboriginal peoples. However, the
Convention reflected the policy of assimilation then prevalent and about to reach its
aggressive zenith in North America and Australasia. As Professor Anaya has observed, the
universe of values that promoted the emancipation of the colonial territories during the
middle part of this century simultaneously promoted the assimilation of members of
culturally distinctive indigenous groups into dominant political and social orders that
engulfed them.40 Convention 107 was framed in terms of members of indigenous
populations and their equal rights within the larger society, rather than indigenous
peoples or groups coherence as such. So article 3(1) called for special measures to protect
the institutions, persons, property, and labour of indigenous populations so long as the
social, economic, and cultural conditions of the populations concerned prevent them
from enjoying the benefits of the general laws of the country. Underlining the temporary
character of state protection, paragraph (2) of this article added that such special measures
were not to be used to create or prolong a state of segregation. That is, they could not be
used as a means of ensuring the long-term survival of the indigenous group apart from
that of the culturally homogenous nation. Nonetheless, although drafted without
aboriginal input, the Convention gave indigenous peoples a foothold in the international
system through the conceptual and institutional medium of human rights. This medium
would become invaluable once it had been re-oriented in a manner more sympathetic to
the disposition of aboriginal people towards retaining and having protected through law
their collective and individual cultural identities.
The two important Covenants issued by the United Nations in 1966 amplified the
human rights norms of the United Nations Charter and Universal Declaration. They
invigorated normative development in numerous areas, including the position of
indigenous peoples. The first article of both the International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social and Cultural
Rights declared that [a]ll peoples have the right to self-determination. By virtue of
that right, the articles continued, peoples freely determine their political status and
freely pursue their economic, social and cultural development.41 Article 27(1) of the
Covenant on Civil and Political Rights also declared the right of minority groups and
individuals to retain their cultural integrity:
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such
minorities shall not be denied the right, in community with the other members of their group, to
enjoy their own culture, to profess and practise their own religion, or to use their own language.
39 40
GA Res 1514, 15 UN GAOR Supp (no 16) at 6667. Ibid 44.
41
International Covenant on Civil and Political Rights, 16 December 1966, GA Res 2200(XXI), article
1(1), 999 UNTS 171 (entered into force 23 March 1976); International Covenant on Economic, Social and
Cultural Rights, 16 December 1966, GA Res 2200(XXI), article 1(1).
On the face of it this provision appeared negative, enjoining a state to refrain from
interference with a minority while not requiring it to take positive protective steps.
However, the history of its interpretation and application became positive in character,42
including, most notably, the state practice of Canada, Australia, and New Zealand.43
The Covenants thus distinguished peoples holding the right of self-determination
from minorities holding the right to cultural integrity.
As the aboriginal movements grew in strength during the 1970s their advocates
insisted that although aboriginal groups were not to be regarded as mere minorities,
the protection given minorities by international law was nonetheless engaged.
Indigenous peoples were thus synthesizing their own distinctive set of rights from the
self-determination, minority, and human rights norms. So, for example, aboriginal
groups made significant use of the remedial mechanism established by the First
Optional Protocol by petitioning the Human Rights Committee.44 Two cases,
Lubicon Lake Band v Canada (1984)45 and Kitok v Sweden (1985),46 involving the
Sami deer-herders, helped set the stage for the important developments then being
experienced by international law. They insisted also, however, that they were peoples
holding the right to self-determination, although the Committee sidestepped the
question by disposing of the communication under article 27.
Indigenous people would use that cluster of inter-related norms with increasing
familiarity and growing international receptiveness during the last quarter of the twenti-
eth century despite the fact that, for all their versatility, they did not deal specifically with
their position. Gradually, however, a corpus of specific rights began forming around those
norms as the international community paid more attention to the situation of indigenous
peoples. In that regard the efforts of indigenous peoples were undoubtedly oiled by the
fall of the Soviet bloc (1989) and globalization rendering state territoriality increasingly
permeable.
It was not until the early 1990s, as the United Nations Working Group on
Indigenous Peoples (WGIP) considered the rights of aboriginal peoples with a view to
an eventual General Assembly Declaration, that international law reached the stage of
recognizing incontrovertibly the special status of aboriginal peoples. The United
Nations had established this Group in 1982 at the lowest official level.47 Its foundation
was a response to a series of powerful NGO conferences through the late 1970s48 and
the multi-volume investigation by the Special Rapporteur Jose Martinez Cobo who
42
D McGoldrick, Canadian Indians, Cultural Rights and the Human Rights Committee (1991) 40
International and Comparative LQ 658, 668.
43
R Cholewinski, State Duty Towards Ethnic Minorities: Positive or Negative? (1988) 10 Human
Rights Q 344, 348352.
44
See Don McKay, The UN Covenants and the Human Rights Committee (1999) 29 Victoria
45
University of Wellington L Rev 11. Human Rights Committee Communication no 167/1984.
46
Human Rights Committee Communication no 197/1985.
47
Any recommendations of the WGIP have to work their way up the UN chain, by approval of the
Sub-Commission, the Commission on Human Rights, ECOSOC, the Third Committee of the General
Assembly and finally the full General Assembly.
48
NGO Conference of Indigenous Peoples of the Americas (Geneva, 1977); the first World Conference
to Combat Racism and Racial Discrimination (1978) and an international NGO conference of indigenous
peoples and land (Geneva, 1981).
through 1981 to 1984 compiled extensive, invaluable data on the position of indigenous
peoples.49 These reports had been the long-awaited outcome in turn of a 1971 resolution
of the ECOSOC authorizing the United Nations Subcommission on Prevention of
Discrimination and Protection of Minorities50 to conduct a study on the Problem of
Discrimination against Indigenous Populations.51 By the late 1980s the WGIP was
issuing declarations indicative of the path that international law was heading.52
The WGIP became highly influential despite its lowborn status. From the
mid-1980s it fed the development of international law on two fronts, one procedural,
the other substantive. On the procedural side the WGIP opened international
processes to the participation of indigenous peoples with flexible procedures that did
not privilege nation state representatives. Indigenous peoples were given a central and
official forum in which they could be heard and engage with nation states through the
United Nations. The principle was established, albeit within the limited compass of
the WGIP, of states listening to indigenous peoples. On the substantive side the WGIP
assisted the permeation of greater United Nations consciousness of indigenous
peoples. It pushed for the International Year (1993) and Decade of Indigenous Peoples
(19942004)53 and also produced a Draft Declaration on the Rights of Indigenous
Peoples (1993).54 The Sub-Commission adopted the Declaration (1994) and submitted
it to the Commission on Human Rights who, in turn, established an inter-sessional
open-ended working group, which, at the end of 2002, was still considering it. By the
end of the century the Declaration had still to be formally adopted, although some said
it representedand continues to representcustomary international law.55
The WGIPs influence rippled through other branches of the United Nations
human rights apparatus, notably the Committee on Economic, Social and Cultural
Rights and the Human Rights Committees. These were the United Nations bodies
charged with monitoring the application of the 1966 Covenants. Likewise the
Committee on the Elimination of Racial Discrimination (CERD) issued a General
Recommendation (1997) emphasizing the particular obligations of states to indige-
nous peoples under the multilateral Convention. Influenced by the WGIP, the ILO
issued a new Convention (No 169) (1991) specifically concerned with indigenous
49
Cobo submitted his consolidated final report in 1987: JM Cobo, Study of the problem of discrimination
against indigenous peoples: Volume V, Conclusions, Proposals and Recommendations (Geneva: United Nations,
1987) UN Doc: E/CN 4/Sub 2/1986/7.
50
Later renamed the Sub-Commission on the Promotion and Protection of Human Rights.
51
ESC Res 1589, 21 May 1971, UN ESCOR, 50th Sess, Supp no 1, 16, UN Doc E/5044 (1971).
52
Declaration of Principles on the Rights of Indigenous Peoples as reaffirmed and amended by represen-
tatives of indigenous peoples and organizations meeting in Geneva, July 1987. In UN Doc E/CN 4/Sub
2/1987/22, Annex 5 (1987).
53
UNGA Resolution 48/163, 21 December 1993 and 50/157, 21 December 1995, Annex: Programme
of activities for the International Decade of the Worlds Indigenous People at para 1-6 setting out the goals for the
Decade.
54
That year the Vienna World Conference on Human Rights (which called for the renewal and updating
of the mandate of the WGIP) added momentum in calling upon states to take positive steps to ensure their
equality and non-discrimination and the value and diversity of their distinct identities and organization:
Vienna Declaration and Programme of Action adopted at the World Conference on Human Rights, UN Doc:
A/CONF 157/23, 12 July 1993, esp Section I, para 20.
55
Anaya, Indigenous Peoples in International Law, 5657.
peoples, carefully replacing the assimilationist philosophy with principles of aboriginal

self-determination (whilst carefully also preserving the territorial integrity of nation
states). The United Nations Conference on Environment and Development at Rio de
Janeiro (1992)56 also recognized the status and role of indigenous peoples in preserving
environmental quality and biodiversity. Development of conventional international
law on environmental matters continued that recognition of their environmental role,
notably the Nairobi Convention on Biological Diversity (1992). The Johannesburg
Summit (2002), the ten-year review of progress after Rio, reaffirmed the vital role of
indigenous peoples.57
Two important developments at the beginning of the twenty-first century were the
creation of the Permanent Forum on Indigenous Issues (2000) and Special Rapporteur
(2001). These confirmed the distinct juridical status of aboriginal peoples under inter-
national law.
The Permanent Forum on Indigenous Issues was established as a subsidiary organ of
ECOSOC, (in contrast to the WGIP) at the highest UN level possible without amend-
ment to the Charter. It was set up as an advisory body on the indigenous peoples dimen-
sion of matters in the Councils remit, particularly to foster co-ordination of and
aboriginal participation in UN activity.58 The Forum consists of sixteen members, eight
nominated by governments and elected by ECOSOC, and eight appointed by the
President of the Council following consultations with indigenous organizations (eight
indigenous nominated experts).59 It was founded on the expectation that it would
mainstream awareness of indigenous peoples issues within the UN system, although
that potential remained compromised by the absence of a definitive set of rights. One of
the first steps of the Forum was to call for adoption of the Draft Declaration.
The Commission on Human Rights, worried by lack of progress on the Draft
Declaration, established a Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous peoples (2001). The Special Rapporteur was
given the brief of gathering information from all relevant sources about the violations
56
Chapter 26, Recognising and Strengthening the Role of Indigenous People and their Communities,
adopted by the UN Conference on Environment and Development, Rio de Janeiro, 13 June 1992. UN Doc
A/CONF 151/26 (vol 3), at 16, Annex 2 (1992).
57
Johannesburg Declaration of Sustainable Development of the World Summit on Sustainable Development,
4 September 2002 (online, with related documents, www.johannesburgsummit.org/html/documents/
summit_docs/1009wssd_pol_declaration.htm).
58
The Forums function is to : (a) Provide expert advice and recommendations on Indigenous issues to
the Council, as well as to programmes, funds, and agencies of the United Nations, through the Council; (b)
Raise awareness and promote the integration and coordination of activities relating to Indigenous issues
within the United Nations system; and (c) Prepare and disseminate information on Indigenous issues.
Economic and Social Council Resolution 2000/22, 28 July 2000 (para 2). The Forum was established to
report yearly to the Council with the report being distributed to the relevant UN organs, funds, and agencies
to increase awareness and dialogue in this area (para 5).
59
Ibid para 1. Organizations of indigenous peoples may equally participate as observers in accordance
with the procedures of the WGIP (para 1). The financing of the Permanent Forum was to be through existing
resources and voluntary contributions (para 6). Its first session recommended establishment of a Secretariat.
In July 2002 ECOSOC forwarded this request on to the Secretary General, who, in turn, passed this matter
on to the General Assembly: UN Docs E/2002/L32 and E/2002/L33, 24 July 2002. In December 2002 the
5th Committee of the GA awarded an interim budget until a regular one could be established in the 20045
UN budget biennium cycle.
of indigenous peoples human rights and to formulate recommendations and proposals

on appropriate measures and activities to prevent and remedy them.60
The United States and Australia supported the establishment of the Special
Rapporteur, but on the basis that the WGIP had fulfilled its mandate and was rendered
redundant by this new office as well as the new Permanent Forum, a position
ECOSOC presaged when establishing the latter.61 As the end of the Decade for the
Worlds Indigenous People approached, there were four mechanisms within the UN
system addressing their issues: the WGIP, the inter-sessional working group on the
Draft Declaration, the Permanent Forum and the Special Rapporteur. Although
rationalization of those processes was a growing concern, there seemed agreement that
it would best be done once the Draft Declaration had been finalized (a outcome that
seemed even further away in 2003 than 1993).
Those developments signalled the increasing incorporation of indigenous peoples
into the fold of international law. Although many groups aspired to the full-blown
status, indigenous peoples polities did not rank alongside the nation state. However,
after the foundation of the WGIP, they gained increasing recognition as distinct actors
with a developing set of rights. The foundation of that development was the problematic
notion of self-determination, but it drew also upon the human rights and minority
rights norms to synthesize a unique, organic corpus of law. In that regard the juridical
status of indigenous peoples that developed in the 1990s was not an absolute or fixed
one, in the manner of the nation state, but became what Kingsbury has described as a
constructivist one. It took the international concept of indigenous peoples not as
one sharply defined by universally applicable criteria, but as embodying a continuous
process in which claims and practices in numerous specific cases [were] abstracted in
the wider institutions of international society, then made specific again at the moment
of application in the political, legal and social processes of particular cases and
societies.62
2. Substantive rights: the primary right of self-determination

The right to self-determination appeared in article 1 of both International Covenants
(1966), the first on Civil and Political Rights, the second on Economic, Social and
Cultural Rights. The common first article stated:
1. All peoples have the right of self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development.
60
Commission on Human Rights Resolution 2001/57, 24 April 2001.
61
ECOSOC Resolution 2000/22, preamble and para 8 deciding once the Permanent Forum has been
established, to review, without prejudging any outcome, all existing mechanisms, procedures and pro-
grammes within the United Nations concerning Indigenous issues, including the Working Group on
Indigenous Populations, with a view to rationalising activities, avoiding duplication and overlap and pro-
moting effectiveness. This review began in September 2002.
62
Benedict Kingsbury, Indigenous Peoples in International Law: A Constructivist Approach to the
Asian Controversy (1998) American J of Intl L 414, 416. Similarly Anaya, Indigenous Peoples in International
Law, 7879.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources
without prejudice to any obligations arising out of international economic co-operation,
based upon the principle of mutual benefit, and international law. In no case may a people
be deprived of its own means of subsistence.
3. The States Parties to the present Covenant shall promote the realization of the right of
self-determination, and shall respect that right, in conformity with the provisions of the
Charter of the United Nations.
The most dramatic feature of this article, its blessing and bane, was its open-textured
character. This imprecision made it available to aboriginal peoples despite the article
not having been framed originally with them in mind. The right of self-determination
was barely defined. It was extended to all peoples. Those two questions dogged
aboriginal peoples claims to the right under this foundational article throughout the
remainder of the century and on. To reverse their order, they were, first, the question
of whether or not aboriginal peoples were peoples for the purpose of the article and,
secondly, the character and scope of the right to self-determination.
(a) Aboriginal nations as peoples

Over the years the inclusion or otherwise of aboriginal peoples in the reach of article 1
excited considerable controversy. The reason for that anxiety was that the fullblown
right carried with it the right to secede. States opposed article 1 self-determination in the
aboriginal context because they feared it might undermine their territorial integrity, or
at least encourage such challenges. That fear may have held some credibility in the 1970s
and 1980s when the substance of the proclaimed right of aboriginal self-determination
lacked specificity. However by the early 1990s reluctance had become misapprehension
as there was by then widespread recognition by international lawyers of an aboriginal
right to self-determination that did not incorporate its ultimate resort.63 Nonetheless
state disinclination persisted and, defying clear logic, resurfaced with a vengeance (in
Australia most especially) a few years later. At the end of the century the fear of licensing
secession, never more than a notional option anyway, remained the intellectual
stumbling block for states. That anxiety inhibited proper recognition and fuller
articulation of the norm of self-determination.
To some extent, however, that dogged refusal was being overtaken by the march of
events, particularly during the 1990s. In the early 1970s international practice paid
little attention to indigenous peoples, seeing self-determination almost entirely in
saltwater terms.64 However during the 1990s UN bodies working under the human
rights structures gradually brought aboriginal peoples under the umbrella of article 1
as indigenous rights became a more clearly distinct status to that of minority
rights. In doing that they were following the Draft Declaration (1993). Unlike the
pussy-footing in the Organisation of American States and ILO Convention 169,
63
Notably in the work of Hannum and Anaya in the early 1990s. Likewise McHugh, The Maori Magna
CartaNew Zealand Law and the Treaty of Waitangi (Auckland: Oxford University Press, 1991) 197198.
64
Notably General Assembly Resolution 1514 (XV), 14 December 1960 (the Declaration on the Granting
of Independence to Colonial Countries and Peoples), which was passed several years before the Covenants, and
General Assembly Resolution 2625, 24 October 1970 (the Declaration on Principles of International Law
concerning Friendly Relations among States in accordance with the Charter of the United Nations).
both of which disclaimed the full article 1 implications of use of the word peoples,
article 3 was clear:
Indigenous peoples have the right of self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development.
The Human Rights Committee was established under the (first) Optional Protocol to
the Covenant on Civil and Political Rights (1966),65 consisting of eighteen members
elected to four-year terms. It was given three functions. The first required it to consider
the periodic reports from states on the measures that they had taken to give effect to the
rights in the Covenant (article 40). Secondly, a procedure was available between states
allowing one state to make a communication against another (articles 4041). Thirdly
and most importantly, under article 1 of the Protocol the Committee could receive and
hear communications66 from individuals (authors) who claimed to be victims of a
violation by a state party of any of the rights set out in the Covenant. In the 1980s the
Committee sidestepped the status of indigenous communities as peoples under
article 1 by applying article 27 (minority rights) of the Civil and Political Rights Covenant
and related multilateral instruments.67 However by the late 1990s the Committee
became bolder, at least in the coda to its observations on state reports (as opposed to
determinations on communications brought by individuals). In these it indicated that
aboriginal communities were peoples with the right to self-determination.68 The
Committee on Economic, Social and Cultural Rights was by then doing the same.69
This meant that by the late 1990s the two committees responsible for auditing and
articulating the standards under the two Covenants had recognized aboriginal peoples
as holding the right to self-determination.
This inclusion of aboriginal communities in the reach of article 1, although
consistently resisted by states, was reinforced by the growing recognition of the
difference between minorities and indigenous peoples as rights-bearing categories.
During the 1990s it became plain that a dual track had emerged in United Nations
65
See generally Don McKay, The UN Covenants and the Human Rights Committee (1999) 29 Victoria
University of Wellington L Rev 11.
66
For a municipal interpetation of the right where aboriginal interests are affected see Wellington District
Legal Services v Tangiora [1998] 1 NZLR 129 (CA) (legal aid to petition the Committee refused).
67
In Ominayak v Canada the Committee decided that no claim for self-determination can be brought
under the Optional Protocol (Communication no 167/1984). Applying article 27 see also Ivan Kitok v
Sweden (GAOR Supp (no 40) (43rd Session), UN Doc A4340197 1985 (Communication no 197/1985);
Lansmann v Finland Communication no 671/1995, 30 October 1994); Mahuika et al v New Zealand
Communication no 547/1993, 27 October 2000.
68
Human Rights Committee, Concluding observations on Canada (7 April 1999) UN Doc
CCPR/C/79/Add 105 at paras 7 and 8; Concluding observations on Norway (5 November 1999) UN
Doc CCPR/C/79/Add112 at paras 10 and 17; Concluding observations on Australia (25 April 2000) UN Doc
CCPR/CO/69AUS at para 10 (note too that point 4 on the List of Issues had asked What is the policy of
Australia in relation to the applicability to the Indigenous peoples in Australia of the right of self-determination
of all peoples?).
69
Concluding observations on Canada (10 December 1998) UN Doc E/C12/1/Add31 and point 23 on
List of Issues (10 June 1998) UN Doc E/C12/Q/CAN/1; point 3 on the List of Issues, Australia (23 May
2000) E/C12/Q/AUSTRAL/1; Concluding observations on Columbia (30 November 2001), UN Doc
E/C12/1/Add74, paras 12 and 33.
standard-setting with regard to minorities and indigenous peoples.70 The Human

Rights Committees article 27 jurisprudence made plain that indigenous peoples
rights had attributes of those held by minorities. However there were also important
differences, admirably summarized by Eide:71
The difference can probably best be formulated as follows: whereas . . . instruments concerning
persons belonging to minorities aim at ensuring a space for pluralism in togetherness, the instru-
ments concerning indigenous peoples are intended to allow for a high degree of autonomous
development. Whereas [minority rights put] . . . considerable emphasis on effective participa-
tion in the larger society of which the minority is a part . . . , the provisions regarding indigenous
peoples seek to allocate authority to these peoples so that they can make their own decisions . . .
The right to participation in the larger society is . . . given a secondary significance and expressed
as an optional right. Indigenous peoples have the right to participate fully, if they so choose,
through procedures determined by them, in devising legislative or administrative measures that
may affect them . . . The underlying assumption must be that participation in the larger society
is not necessary when they have full authority of their own to make the relevant decisions.
One important area where minority and indigenous rights diverged was on rights to
land and natural resources. Minority rights did not incorporate any such recognition
whereas those lay at the heart of the indigenous. This difference was logically
connected to the basic point that the minority instruments referred to rights of
(individual) persons, whereas those concerning the indigenous referred to rights of
peoples.72
States anxieties about article 1 self-determination giving aboriginal peoples the
basis for the claim to secession were addressed in article 45 of the WGIP Draft
Declaration (1993). This article qualified the right of aboriginal self-determination by
subjecting it to the Friendly Relations Declaration (1970).73 Nonetheless aboriginal
association with land fuelled the secessionist worries of states. Eide argued further that
this confused territorial integrity with cultural autonomy:
Conceptually and in practice, territorial autonomy should be kept separate from cultural
autonomy. . . Generally, it is difficult to accept a principle of territorial autonomy based strictly
on ethnic criteria, since this ran counter to the basic principles of equality and non-discrimina-
tion between individuals on racial or ethnic grounds. There are, on the other hand, strong
arguments in favour of forms of cultural autonomy which would make it impossible to maintain
group identity. What is special for indigenous peoples is that the preservation of cultural
autonomy requires a considerable degree of self-management and control over land and other
natural resources. This requires some degree of territorial autonomy. The scope of and limits of
such autonomy are difficult to specify, however, both in theory and on the ground in specific
cases.74
70
Asbjorn Eide and Erica Daes, Working paper on the relationship and distinction between the rights of persons
belonging to minorities and those of indigenous peoples (19 July 2000) UN Doc E/CN4/Sub2/2000, para 22.
71 72
Ibid para 8. Ibid para 9.
73
The Friendly Relations Declaration (1970), above, states that the recognition of the right of all peoples
to self-determination shall not be construed as authorising or encouraging any action which would dis-
member or impair, totally or in part, the territorial integrity or political unity of sovereign and independent
states conducting themselves in compliance with the principles of equal rights and self-determination of
peoples as described above and thus possessed of a government representing the whole people belonging to
74
the territory without distinction as to race, colour or creed. Above, para 15.
Stateswith the exception of Australia after 1999were not opposed to aboriginal

self-determination in itself, the North American and Australasian jurisdictions having
incorporated that into official policy- and law-making since the mid-1970s. They were
only opposed to it in its full (that is, unqualified) article 1 sense. Consequently
throughout the 1990s as the inter-sessional group was considering the Draft
Declaration, settler-state representatives proposed limiting it more explicitly than
(draft) article 45 to internal self-determination. Aboriginal peoples resisted that
move, arguing that such limitations did not apply to other peoples. Although in
practical terms secession was virtually impossible, they did not feel their right to
self-determination should be any the more circumscribed, however notionally.75
The growing polarization at the end of the 1990s was a classic example of parties
clambering to high ground and principle without looking to the common ground
between them. States feared the most extreme possibility of the right to self-determination
The North American and Australasian governments were aware of the growing
electoral resistance to aboriginal claims, and tended to play to that by conflating article
1 aboriginal self-determination with state-hood and separatism. In those common law
jurisdictions, even the United States with its unique doctrine of residual inherent tribal
sovereignty, the reality was that the expression of self-determination was not self-
executing. Aboriginal self-determination manifested itself for particular groups in
particular endeavours through a conjunction of settler-state facilitation (through law,
especially) and the marshalling of that groups tribal resources. This necessary engagement
was a fact of life, animating aboriginal groups relations with settler-state authorities
and institutions with growing frequency during the 1990s as more tribes sought to
realize their right. Far from being secessionist in flavour, aboriginal self-determination
was context-specific and necessitated state facilitation. It was concerned not with the
removal but with the retention and integration of group identity inside the constitutional
and economic systems of the settler-state. Like their juridical status at international
law, self-determination was a right that did not exist at large, so much as within the
contexts of its application (the constructivist model). The mounting polarization of
the late 1990s might have involved what states and indigenous peoples regarded as
uncompromisable high principle, but it also had an air of pointlessness. Each was arguing
of an impossible world where one could be living without the other, as if the effects of
colonialism could be so undone, as if a return to the historical status quo ante were
viable.
(b) Giving self-determination substance

What did aboriginal self-determination mean (even in the limited and qualified sense
that settler-states gave it)? This was a question that became more pressing in the late
1980s when aboriginal groups became more active politically and economically. That
upsurge (which will be discussed more fully in later chapters) was a consequence of the
vesting of considerable assets and resources in their hands (as well as the prospect of it).
75
Mililani Trask, the Pacific nominated indigenous expert on the Permanent Forum, called this a crisis
emerging in the field of human rights: Future perspectives on the Draft Declaration on the Rights of
Indigenous Peoples: Human rights at the crossroads (2002) 1 Indigenous Affairs 20.
In the United States the impetus came from the establishment of an administrative
process for federal recognition as a tribe coupled with the Supreme Courts recognition
(1987) that Indian country was a jurisdictional enclave where State gaming laws did
not apply. There were other means by which American Indian tribes were becoming
more active in the management of their affairsas by contracting and compacting for
delivery of governmental services (also a feature in other jurisdictions). However
gaming took the highest profile and became a motivating factor for many tribes. In
Canada and New Zealand the settlement processes promised tribal nations considerable
assets, whilst in Australia the native title mechanisms (1993) introduced after Mabo
(1992) required Aboriginal clan nations to become proprietorial entities.
During the 1970s, at a time when aboriginal affairs in most common law systems
were still being managed through the legal regimes of the twilight century, the notion
of self-determination remained vague. It represented an ideal rather than a reality.
Indeed, the term did not even describe processes in train towards that ideal because at
that time the North American and Australasian jurisdictions mostly lacked any overall
framework or institutional machinery towards that goal. Certainly there was no
national design centred about the principle for all the new talk coming from official
quarters of aboriginal self-determination. On the whole, the human rights and minor-
ity rights norms were given the legal emphasis during the 1970s, as the raft of
Australian legislation under the Whitlam Government, anti-discrimination legislation
in New Zealand, and the application of the Canadian Bill of Rights demonstrated.
Governments were thinking of and legislating for aboriginal affairs more in terms of
non-discrimination and maintenance of minority rights than positive provision for
self-determination. Indeed, when they thought of self-determination at that time it
tended to be interchangeable with self-management.
The first substantial sign of legal movement towards a more proactive notion of
aboriginal self-determination came with the United States Supreme Court judgment
in Martinez (1978). State practice in other jurisdictions followed during the 1980s,
Australia finally entering the lists in 1993. Gradually self-determination became a
more coherently expressed feature of state practice, such that by the late 1990s its presence
was clear. Paradoxically state practice promoting aboriginal self-determination had
become strongest at a time when the North American and Australasian settler-states
were distancing the right from association with article 1. That irony underlined the
futility of their resistance.
One reason why international law, like state practice, failed to flesh out the right of
aboriginal self-determination during the 1970s and much of the 1980s lay in the fact
that the term was then as much defined negatively, by what it had rejected and replaced
(the policy of assimilation), as by positive awareness of what it entailed. Aboriginal
militancy still had considerable heat in the 1970s. Aboriginal leaders had spurned
assimilation in these years of anger, and self-determination with all its de-colonial
connotations became its catch-all antithesis, a catch-cry issued at international and
municipal levels.
Yet, aboriginal groups and governments still had to explore what the principle meant
in practice. During the 1980s, for example (though in America it began slightly
earlier), governments began to contract with aboriginal bodies for the delivery of
services and programmes to tribal members. In order to contract, the aboriginal polity
was required to incorporate or adopt a special-purpose mechanism. Here the positive
results were mostly short-lived as aboriginal enterprise was put into the straitened legal
form required by bureaucracies. Often those forms were not a cultural fit. Many groups
limped from one government-set programme to another, leaving a dessicated trail of
legal husks behind. However, although the early experience of service-delivery was
bumpy, in the municipal sphere it brought the notion of self-determination in from a
high idealistic statement towards a goal that was being explored more concretely, if
frequently clumsily. By the early 1990s international institutions were beginning to do
likewise. As state practice began to clarify what the actual expression of self-determina-
tion meant, international law also began to amplify its compass, drawing upon and
reconstituting principles of self-determination, minority rights, and human rights. In
that regardin articulating more substantively the conditions for aboriginal self-
determinationthe ILO Convention 169 (1991) and the Draft Declaration (1993)
were pivotal.
(i) Self-identifying status

The rights that aboriginal groups and individuals were recognized as holding under
international law in the early 1990s were premised upon their self-identifying practices
as groups and as individuals within those groups. Draft Declaration articles 8 and 9
demonstrated how this self-defining activity generated status and the protection of
international law.
8. Indigenous people have the collective and individual right to maintain and develop their
distinctive identities and characteristics, including the right to identify themselves as
indigenous and to be recognised as such.
9. Indigenous peoples and individuals have the right to belong to an indigenous community or
nation, in accordance with the traditions and customs of the community or nation concerned.
Draft article 19 continued that theme:
19. Indigenous peoples have the right to participate fully, if they so choose, at all levels of
decision-making in matters which may affect their rights, lives, and destinies through represen-
tatives chosen by themselves in accordance with their own procedures, as well as to maintain and
develop their own indigenous decision-making institutions.
Article 31 of the Draft Declaration gave the group as a specific form of exercising their
right to self-determination, . . . the right to autonomy or self-government in matters
relating to their internal and local affairs . . . as well as ways and means for financing
these autonomous functions. As part of that right to cultural and political integrity
they had the collective right to determine their own citizenship in accordance with their
customs and traditions and to determine the structures and to select the membership
of their institutions in accordance with their own procedures (draft article 32).
International law thus recognized the integrity of the aboriginal polity and its right to
maintain and develop that inside the settler-states constitutional system in accordance
with internationally recognised human rights standards (draft article 33).
The relevant international instruments put self-determination in the present tense,
contemplating groups that remained self-determining. Self-determining peoples were
seen as being inside a process rather than at an outcome. The integrity that international
law gave indigenous peoples, for all the incorporation of traditional association and
customary form, was not that of a museum-piece but a vital and developing culture.
Municipal legal systems were apt to overlook that aspect. In the rights-integration
processes of the 1990s one device by which aboriginal rights were limited in scope and
potential was through a frozen-in-time approach that defined those by reference to an
imagined bygone condition of aboriginal history.
So far as aboriginal status was concerned, international law set the self-identifying
activity of groups and individuals as the appropriate legal standard and required states
to frame their laws accordingly. What was more problematic was where the aboriginal
group set rules for membership that did not square with the self-identifying practices
of the individual and resulted in discriminatory treatment.
During the twentieth century the North American jurisdictions set rules for tribal
membership that disqualified from legal status an Indian woman who had married a
non-Indian. The origin of this practice went back to the nineteenth century when
white men would take an Indian wife not only for conjugal succour but for access to
tribal land. In the United States some tribes responded with membership rules
(enacted under their inherent sovereignty) that disqualified the white husband and
native wife. In Canada the disqualification of status was implemented by federal
legislation at the request of some First Nations where, over a century, it became embedded
into their practices. Aboriginal women whose personal identity remained associated
with the native polity from whom they had been excluded, challenged this removal of
status in the 1970s. In a landmark case, Martinez (1978), the Supreme Court upheld
the authority of the tribe to apply its own rules of membership under its inherent
sovereignty, notwithstanding the discriminatory effect.76 In Canada, however, the
same rule operated as a state rather than tribal measure, and as a result it was regarded
as prohibited discrimination against the aboriginal individual.
Yvonne Bedard lost her status as a member of the Six Nations Reserve in southern
Ontario when she married a non-Indian in 1964. She returned to the reservation in
1970 with her two children to live in a house she had inherited from her mother.
Separated and with nowhere else to turn, she found herself no longer entitled to reside
on the reserve as of right or to inherit reserve land. The band council gave her a year in
which to dispose of the property. They later extended this but indicated that after it
expired she must leave the reserve. Worried by the prospect of eviction, she com-
menced proceedings. The eventual appeal to the Supreme Court was conjoined with
another brought by Jeanette Lavell, an Objibwa woman and member of the
Wikwemikong Band on Manitoulin Island. At first instance Lavell had been told that
the fate of section 12(1)(b) was not properly a matter for judicial determination,
notwithstanding the equality of treatment guaranteed by the Bill of Rights Act. It was
a matter best resolved by negotiation between the Crown and First Nations.77 Lavell
succeeded on appeal78 and on the strength of that Bedard also succeeded in her action,
the judge in the latter case commenting upon the exposure of the whole Indian Act to
76
Santa Clara Pueblo v Martinez 436 US 49 (1978).
77 78
Re Lavell and Canada (1971) 22 DLR (3d) 182 (Ont HC). Lavell v Canada [1971] FC 347.
challenge on the grounds of its discriminatory treatment of Indians. 79 As it was, when

both cases reached the Supreme Court it divided and section 12(1)(b) was upheld by
the narrowest and most unconvincing of margins. The National Indian Brotherhood
and status Indians in general greeted the result as a victory in the defence of the Indian
Act.80 The sequel was an application by Sandra Lovelace to the Human Rights
Committee, whose eventual communication resolvedor presented, depending on
ones outlooka dilemma for the Canadian government. It provided the justification
for amending the Indian Act in 1985. These reforms took popular description as Bill
C-31, the title of the legislation as introduced.81 In the face of strenuous Indian
objection new sections 6 and 7 were inserted, removing the statutory preference for
male descent and status. Indian objections to Bill C-31 appeared to have been based
on economic pragmatism:
Many band/tribal councils opposed Bill C-31 on grounds that their ancestral heritage (i.e.
reserve lands and treaty benefits, etc.) is inadequate to provide their present membership with an
acceptable standard of living. Therefore, they could not accommodate additional members. This
resulted in a squabble among blood heirs over their ancestral heritage. The squabble over this
heritage is complicated by privatization, that is, the Indian Act provision under which commu-
nal benefits (assets and entitlements) are being transferred into individual benefits. The Indian
elite class, which benefits disproportionately from privatization, is motivated by a powerful class-
based interest to protect their bloated share of band/tribal assets from potential diminishment by
claims from any additional heirs.82
One commentator called the Lovelace casewhich received surprisingly little
publicity in Canada83a landmark because of the recognition of a right for minority
groups and their members to define themselves.84 It has been estimated that as a result
of this legislation 70,000 persons were added to the federal Indian registry and band
lists. According to one source the status Indian population in Canada grew from
360,000 to 487,000 in a little over four and a half years.85
The Lovelace case anticipated what would become a growing issue within aboriginal
culture during the 1990s. By then the international and municipal legal processes
accommodating aboriginal self-determination were tending to consolidate the authority
of traditional aboriginal politiesthe tribal nation. All constitutional systems sent
strong signals to the tribal nations that their autonomy would only be tolerated so long
as it comported with key individualistic values of the host system enshrined in the
79
Bedard v Isaac [1972] 2 OR 391 (Ont HC).
80
Sally M Weaver, Making Canadian Indian Policy: The Hidden Agenda 196870 (Toronto: University of
Toronto Press, 1981) 199200.
81
But not enacted, where it is Stat Can 1985 cap 32 (1st Supp). See section 4 inserting new sections 5 to
14 into the Indian Act.
82
Menno Boldt, Surviving as Indians: The Challenge of Self-Government (Toronto: University of Toronto
Press, 1993) 212213.
83
Anne Bayefsky, The Human Rights Committee and the Case of Sandra Lovelace (1982) Canadian
Yearbook of Intl L 244, 261.
84
W Moss, Indigenous self-government in Canada and sexual equality under the Indian Act (1990) 15
Queens LJ 290, 294.
85
MA Jackson, Aboriginal women and self-government in J Hylton (ed), Aboriginal Self-Government in
Canada (2nd edn, Saskatoon: Purich Publishing, 2000) 180, 182.
international covenants, such as the non-discrimination message of Lovelace. So long

as tribal polities kept inside that constitutional perimeter, their self-determination was
assured. Yet international law recognized that aboriginal groups were self-determining
and it became clear during the 1990s that groups claiming aboriginal status were
forming outside the traditional nation-based form. These were groups of displaced or
non-status aboriginal individuals, invariably urban and who, like Yvonne Bedard and
Sandra Lovelace, claimed aboriginal status by reason of their self-identifying practices
apart from those set by the traditional polity. The governments of North America and
Australasia disclaimed any special constitutional responsibility for these groups qua
aboriginal, yet increasingly these non-traditional groups demanded aboriginal status.
(ii) The right of effective participation

The aboriginal polities not only had distinct membership inside the host constitutional
system but they also held the right to participate fully within that system without
discrimination. This norm of non-discrimination was an established principle of inter-
national law by the time of and apart from the Draft Declaration. Somethe Social
Justice Commissioner for Aboriginal People in Australia, for oneput a highly positive
spin, bundling it with other human rights and characterizing it as the right to effective
participation in matters of direct cultural concern.86
The non-discrimination norm was applied dramatically in Australia in the late
1990s through the mechanisms of the Convention for the Elimination of all forms of
Racial Discrimination (CERD). In 1999 Australia became the first western nation to
be the subject of an Early Warning/Urgent Action decision from the Committee for
CERD. The Committee inquired into the controversial native title amendment
legislation (1998) and changes to the functions of the Social Justice Commissioner, an
office founded in 1993 and a sharp thorn in the governments side (especially since the
combative conservative Howard Government came to power (1996)). The Committees
decision of March 1999 caused a storm when it noted that certain aspects of the 1998
amendment discriminated against Aboriginal peoples by treating their property rights
differentially and less favourably than those of other citizens. The Commonwealths
response was defiant, more so after the Committee reiterated its decision more
emphatically a short while later.87 Ministers rejected this intrusion into Australias
domestic affairs. Premier Howards Government, angered by other UN interventions
into its human rights observance, entered a period of frosty relations with these
structures of international accountability.88
(c) Land and treaty rights

International law proscribing discrimination against minorities provided aboriginal
groups with the right to full, positive participation in the constitutional system of the
settler-state. However, as noted already, indigeneity provided them with a raft of
86
HREOC Social Justice Report 2002, ch 6.
87
Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia (19
April 2000) UN Doc CERD/C/304/Add 101.
88
For example, in August 2000 Australia refused to let UN Human Rights Committee members into the
country.
particular rights apart from those of a minority, particularly in relation to their

ancestral land. The Draft Declaration recognized their right to a distinctive spiritual
and material relationship with lands, territories, waters and coastal seas which they
have traditionally owned and to uphold their responsibilities to future generations
in this regard (draft article 25). As traditional owners they were entitled to maintain
their customary systems of tenure and to effective measures by the settler-state to
prevent interference with and alienation of that land (draft article 27). Moreover they
had the right to the restitution of lands confiscated, occupied, used or damaged
without their free and informed consent (draft article 27). Indigenous peoples also
were entitled to the conservation, restoration and protection of the total environment
(draft article 28), their cultural and intellectual property (draft article 29), and to the
economic development of those resources (draft article 30). Indigenous peoples were
also recognized as having the right to the recognition, observance and enforcement of
treaties, agreements and other constructive arrangements with the settler-state (draft
article 36).
In the early 1990s, when the above substantive rights were being articulated, state
practice in North America and Australasia had been moving towards an accommodation
of sorts with that cluster of land-related and treaty rights. The Draft Declaration also
made explicit reference to particular issues that had appeared in aboriginal relations
with settler-states, such as the use of traditional land for military purposes and the
dumping of hazardous wastes.
The various international instruments, including the Draft Declaration which
lacked status as conventional international law, acknowledged the difference between
rights held by indigenous peoples under international law and those in place under the
municipal systems. Indeed, the reporting and communication mechanisms of the
Covenants acknowledged the reality of the disjuncture between what international law
required of nation states and how they actually behaved. In that regard, international
law required nation states to take steps to bring themselves into conformity with their
international obligations but, as the Australian cocked snoot indicated, could do little
further. Nonetheless by the 1990s and as the legalism intensified in each jurisdiction,
it played against and was to some extent shaped by the developing set of international
legal norms. Having begun the twentieth century in a state of neglect by international
laws charmed circle, indigenous people ended it as rights-bearing actors, neglected
no longer.

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5

Aboriginal Societies and International Law: A

Aboriginal Societies and the Common Law. P.G. McHugh.

1. The juridical rehabilitation of aboriginal peoples

remarkably consistent, at least in the avowing, over three centuries of European

underlying approach of the Declaration was that of negative protection, protection

peoples, carefully replacing the assimilationist philosophy with principles of aboriginal

of indigenous peoples human rights and to formulate recommendations and proposals

2. Substantive rights: the primary right of self-determination

(a) Aboriginal nations as peoples

standard-setting with regard to minorities and indigenous peoples.70 The Human

Stateswith the exception of Australia after 1999were not opposed to aboriginal

(b) Giving self-determination substance

(i) Self-identifying status

challenge on the grounds of its discriminatory treatment of Indians. 79 As it was, when

international covenants, such as the non-discrimination message of Lovelace. So long

(ii) The right of effective participation

(c) Land and treaty rights

particular rights apart from those of a minority, particularly in relation to their

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