§1 Introduction
The United Nations Declarations on the Rights of Indigenous Peoples[i] is intended to provide “a universal framework of minimum standards for the survival, dignity and well-being of the Indigenous peoples of the world.”[ii] UNDRIP is widely regarded as a valuable instrument for the recognition and protection of Indigenous rights globally. Victoria Tauli-Corpuz, the former UN Rapporteur on the Rights of Indigenous Peoples, said that the adoption of the Declaration, “marks a major victory for Indigenous people who actively took part in crafting this Declaration.”[iii] Former Secretary General of the United Nations, Ban Ki-moon, characterized UNDRIP as “a triumph for Indigenous peoples around the world.”[iv] The Truth and Reconciliation Commission of Canada’s Calls to Action recommends that the federal, provincial, and territorial governments of Canada employ the Declaration as “the framework for reconciliation.”[v] And, in Canada, on June 21st, 2021, the United Nations Declarations on the Rights of Indigenous Peoples Act was adopted. This Act mandates the Government of Canada to “take all measures necessary to ensure that the laws of Canada are consistent with the Declaration.”[vi]
I agree that UNDRIP makes important contributions to recognizing Indigenous rights and advancing corrective justice in Indigenous-state relations. However, for the purposes of this blog, I want to take the opportunity to examine some of the Declaration’s confining aspects. I begin by acknowledging some valuable contributions that UNDRIP makes towards advancing corrective justice with respect to Indigenous-state relations. However, this discussion is followed by a consideration of one of UNDRIP’s Articles which could be construed as suggesting that reform of the core aspects of settler colonial political orders is off the table. Core aspects of the basic structure of settler-colonial states that will be discussed here include: a state monopoly on coercive force, absolute state sovereignty, and an elevation of the authority of settler legal traditions relative to Indigenous legal traditions. These core aspects of the settler state’s basic structure reflect a substantive degree of inequality and lack of reciprocity in Indigenous-state relations. As such, they are appropriate targets for initiatives advancing corrective justice. However, the Declaration’s limiting Article, as we will see, raises questions about whether reforms targeted at these core aspects of the settler colonial state are inconsistent with UNDRIP. As will be noted below, it is, at this point, ultimately unclear how UNDRIP’s limiting Article will be interpreted and applied. There are certainly viable interpretations of this Article that are consistent with substantive corrective reforms to these core aspects of the basic structure. However, those who must interpret and apply this Article in the years to come will face a crossroads. Will corrective reforms to the basic structure be placed out of bounds by UNDRIP? Or, alternatively, will such reforms be regarded as compatible with the framework it puts in place? While the answer to these questions is yet to be determined, awareness of the presence of such a crossroads, it is hoped, will encourage a more mindful and ethical navigation of it.
§2 UNDRIP and Corrective Justice
What is corrective justice? And, how does UNDRIP contribute to it? First, Tommie Shelby characterizes the theory of corrective justice as being jointly composed of principles of reform and revolution, which guide transitional efforts to shift from unjust and unethical social and political arrangements to more just and ethical ones,[vii] and the principles of rectification, which are “oriented toward settling unpaid moral debts.”[viii] Second, a core principle of UNDRIP is that states are required to engage in good faith consultation and cooperation with Indigenous peoples to obtain their “free, prior and informed consent.” Article 19, for example, specifies that this form of consultation and cooperation is required before adopting and implementing legislative or administrative measures that may affect Indigenous peoples.[ix] Article 32.2 requires this kind of consultation and cooperation before the approval of development projects that impact the lands, territories, and resources of Indigenous peoples.[x] The history of settler colonial political orders is rife with examples of legislation and development projects that have significant impacts on Indigenous people, lands, resources, and communities. Nevertheless, states have frequently proceeded with these actions as if there were no obligation to consult and cooperate with the Indigenous peoples impacted. I think it is, thus, fair to say that UNDRIP’s requirements to consult and cooperate with Indigenous peoples are an important component of corrective justice since they provide a guide to reforming aspects of Indigenous-state relations that deviate from those of a just and ethical relationship.
Even though the Declaration offers these important corrective adjustments, it also has confining aspects. Article 46 provides limits on the extent to which UNDRIP could justify a broad and deep restructuring of the Indigenous-state relationship at the level of the state’s basic structure. Article 46 holds that “nothing in this Declaration may be interpreted as implying . . . or construed as authorizing or encouraging any action which would dismember or impart, totally or in part, the territorial integrity or political unity of sovereign and independent States.”[xi] Thus, while UNDRIP requires good faith consultation and cooperation with respect to legislative measures and development project approval, some may regard this Article as suggesting that reforms directed at more central, or core, features of settler colonial political orders are off the table.
§3 Core Features of Settler Colonial Legal and Political Orders
To further this discussion, I propose that there are, at least, four core features of settler colonial political orders. These features (i) manifest unequal and non-reciprocal aspects to Indigenous-state relations, (ii) cannot reasonably be expected to gain the free and informed acceptance of Indigenous peoples and (iii) are deeply embedded in the basic structure of settler colonial legal and political orders. Societies such as Canada, Australia, New Zealand, and the United States all exhibit these characteristics to varying degrees within their basic structures.
First, settler colonial societies involve a process whereby a monopoly of coercive force is seized by institutions of the settler’s state. These institutions are primarily accountable to the state’s political bodies, are principally regulated by settler legal traditions, and are primarily controlled by settler people. Second, settler colonial political orders exercise the absolute sovereignty of the settler state. In practice, what this means is that the settler legal and political bodies hold final legislative supremacy, a capacity to justifiably infringe on Indigenous rights, and the state holds underlying land title.[xii] Sometimes settler state sovereignty comes with the recognition of Indigenous rights to self-government and self-determination, as well as with recognition of principles like Indigenous title. However, settler governments and courts often regard their legal and moral obligations to ensure that these rights are respected as being entirely discharged through the state’s delegation of jurisdiction to Indigenous governments in a manner that does not undercut state sovereignty. Third, in settler colonial contexts, there is an elevation of the authority, practices, and concepts associated with settlers’ legal traditions over those of Indigenous legal traditions. Finally, contrary to contexts of interventions for humanitarian or security purposes, in settler colonial contexts there is no serious plan to transition authority back to the territory’s Indigenous peoples. Rather, the settler monopoly of coercive force, acquisition of sovereignty, and the elevation of the authority of settler legal traditions are pursued for an indefinite timeframe.
To further take note of injustices that are at the core of the basic structure of the settler colonial legal and political orders, it is helpful to consider a distinction between settler colonial political orders and what might be characterized as a cooperative and peaceful settlement process. It is certainly imaginable that members of a people may leave their territory and establish a settlement within foreign territories in a manner that involves the consent of the territory’s Indigenous peoples. Indeed, such settlements could very well be internally regulated in accordance with foreign legal traditions. Moreover, it is far from a conceptual impossibility that overarching legal and political frameworks that earn the free and informed consent of all parties could be established. Nothing about such a process should appear surprising. In fact, it is exactly what one ought to expect to occur in the context of a just and ethical relationship between settlers and Indigenous peoples. What is worth recognizing here, however, is that this form of peaceful and cooperative settlement is not what occurs in settler colonial contexts.
In considering whether one can reasonably expect Indigenous peoples to freely accept these core features of settler colonial political orders as fair terms of social cooperation, it is instructive to reflect on John Rawls’ characterization of the reasonable. For Rawls, the reasonable involves a sense of moral respect for others that manifests as an openness to genuinely cooperating with them as free and equal citizens in the formation of the basic principles that regulate society. As Rawls puts it, persons are reasonable when, “among equals, they are ready to propose principles and standards as fair terms of cooperation and to abide by them willingly, given the assurance that others will likewise do so. Those norms they view as reasonable for everyone to accept and therefore as justifiable to them; and they are ready to discuss the fair terms that others propose.”[xiii] Rawls elaborates on this idea, claiming that “reasonable persons . . . desire for its own sake a social world in which they, as free and equal, can cooperate with others on terms that all can accept. They insist that reciprocity should hold within that world so that each benefits along with others.”[xiv] Without getting into details, I think it should be clear that it would be a stretch to regard these core features of settler colonial societies as reasonable, in this sense, in a framework of equal and reciprocal relations between settlers and Indigenous peoples. In societies in which these core aspects are part of the basic structure, there is a clear inequality in both benefits and authority that accrues in favor of settler society.
§4 The Limiting Article and Corrective Reforms of the Core Aspects
Given that these core aspects of settler colonial political orders substantially deviate from the standard of reasonable cooperation in Indigenous-state relations, they make appropriate targets for corrective reforms. Further, since these core aspects are part of the state’s basic structure, they operate at a more fundamental level than legislative measures and project approvals. Thus, effective reforms targeted at these core features go significantly further toward building more ethical and just Indigenous-state relations. However, tying this back into our consideration of the confining aspects of UNDRIP, corrective measures that address such core aspects of the basic structure of settler colonial political orders are likely to encounter arguments that invoke Article 46 of the Declaration, claiming that these measures undermine the territorial integrity or political unity of the state. Legislators, courts, and the public who must consider such arguments will find themselves at a crossroads. Any honest adjudicator should appreciate that the notions of territorial integrity and political unity are far from clearly delineated concepts. Certainly, some overarching state frameworks are conceivable with much less centralization of authority and a greater degree of federalism than what is the norm today.[xv] Such legal and political orders could involve more equality and reciprocity in Indigenous-state relations, and a significantly expanded authority for Indigenous Peoples and laws. There is nothing about such legal and political arrangements that inherently compromises the political unity or territorial integrity of the state, at least on some conceptualization of those ideals. Ultimately, however, it will be up to those adjudicating these arguments as to how Article 46 is applied. Will it be applied in a manner that puts reforms of these core aspects of basic structure out of bounds? Or will it regard such efforts as consistent with the political unity and territorial integrity of the state on some fair construal of those notions? While it remains unclear the course that will be taken as this crossroad nears, no one should be under the illusion that corrective measures that do not touch these core aspects of the basic structure are sufficient to establish just and ethical Indigenous-state relations. Good faith consultation and cooperation with respect to legislation and development project approvals is an essential step forward. However, corrective measures that dig deeper into the basic structure will ultimately be needed to set Indigenous-state relations on a more ethical and just footing.
[i] I use either UNDRIP or ‘the Declaration’ for shorthand.
[ii] See Métis Nation—Saskatchewan UNDA paper, 2023, Kwaayesh Aashtaayaahk. Accessed on Nov. 29th, 2023 at https://metisnationsk.com/wp-content/uploads/2023/08/MN-S-UNDRIP-2023-Position-Statement-Privileged-Confidential.02-14-23.v3.pdf . . . Also see, https://social.desa.un.org/issues/indigenous-peoples/united-nations-declaration-on-the-rights-of-indigenous-peoples. Also see, UNDRIP, 2006, Article 43: 28.
[iii] Tauli-Corpuz, Victoria, ‘Message of Victoria Tauli-Corpuz, Chairperson of the UN Permanent Forum of Indigenous Issues, on the Occasion of the Adoption by the General Assembly of the Declaration on the Rights of Indigenous peoples, Press Release, New York, 13 September 2007, accessed on Nov. 24th, 2023 via https://social.desa.un.org/issues/indigenous-peoples/united-nations-declaration-on-the-rights-of-indigenous-peoples.
[iv] Ki-moon, Ban, Statement attributable to the Spokesperson for the Secretary-General on the adoption of the Declaration of the Rights of Indigenous Peoples, New York, 13 September 2007. Accessed on Nov. 24th, 2023 via https://social.desa.un.org/issues/indigenous-peoples/united-nations-declaration-on-the-rights-of-indigenous-peoples.
[v] Truth and Reconciliation Commission of Canada: Calls to Action, 2015, Call to Action 43: 4.
[vi]https://parl.ca/documentviewer/en/43-2/bill/C-15/royal-assent
[vii] Shelby, Tommie, ‘Racial Realities and Corrective Justice: A Reply to Charles Mills,’ Critical Philosophy of Race, vol. 1, no. 2 (2013): 154. Also see, Tommie Shelby Dark Ghettos: Injustice, Dissent and Reform, Cambridge, Ma., The Belknap Press of Harvard University Press, 2016: 12-13.
[viii] Ibid: 154.
[ix] See UNDRIP, Article 19, p. 16.
[x] Ibid, Article, 32(2), p. 23.
[xi] Ibid, Article 46, pp. 28-29.
[xii] See Nichols, Joshua Ben David, A Reconciliation Without Recollection? An Investigation of the Foundations of Aboriginal Law in Canada, (Toronto, ON: University of Toronto Press, 2020): 44. Also see, Hamilton, Robert, Nichols, Joshua, ‘Reconciliation and the Straitjacket: A Comparative Analysis of the Secession Reference and R. v Sparrow,’ 2021, Ottawa Law Review 52, 2: 428.
[xiii] Rawls, John, Political Liberalism: expanded edition, (New York, NY., Columbia University Press, 2005): 49.
[xiv] Ibid, 50.
[xv] Hamilton, Robert, Nichols, Joshua, ‘Reconciliation and the Straitjacket: A Comparative Analysis of the Secession Reference and R. v Sparrow. Also see, Hamilton, Robert ‘Indigenous Peoples and Interstitial Federalism in Canada,’ Review of Constitutional Studies/Revue d’ études constitutionelles vol. 29: 1, pp. 43-84. Also see, James (Sakej) Youngblood Henderson, ‘Empowering Treaty Federalism’ (1994) 58:2 Saskatchewan Law Review, 241, and Kira Ladner, “Treaty Federalism: An Indigenous Vision of Canadian Federalism” in Francois Rocher and Miriam Smith, eds. New Trends in Canadian Federalism, 2nd ed. (Toronto, Ontario: Broadview Press, 2003) 167.
Paul Simard Smith
Paul Simard Smith is a citizen of the Métis Nation - Saskatchewan and an Assistant Professor in the Department of Philosophy and Classics at the University of Regina.
