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The UN Declaration on the Rights of Indigenous Peoples - A Commentary edited by Hohmann, Jessie; Weller, Marc (22nd March 2018)

Part II Group Identity, Self-Determination, and Relations with States, Ch.7 Equality and Non-Discrimination in the UNDRIP: Articles 2, 6, and 7(1)

Kirsty Gover

From: The UN Declaration on the Rights of Indigenous Peoples: A Commentary

Edited By: Jessie Hohmann, Marc Weller

Subject(s):
Indigenous peoples — Right to non-discrimination

(p. 179) Chapter 7.  Equality and Non-Discrimination in the UNDRIP

Articles 2, 6, and 7(1)

Article 2

Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity.

Article 6

Every indigenous individual has the right to a nationality.

Article 7(1)

Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person.

1.  Introduction

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP)1 is an unusual document. In the corpus of international human rights law, the broadest treaties address the universal rights of all human beings (the ICCPR,2 the ICESCR,3 and the major regional human rights’ treaties: the ACHR,4 the ECHR,5 and the ACHPR6); others address the particular rights of individuals and groups susceptible to discriminatory treatment (the ICERD7 and the CEDAW8), and later instruments elaborate on and refine these rights in application to particular classes of vulnerable individuals (the CRC,9 the ICRMW,10 and (p. 180) the CRPD11). The UNDRIP covers the full spectrum of rights contained in international and regional instruments, adapted to the circumstances of Indigenous peoples. Because the UNDRIP has an exceptionally wide substantive scope, debates about equality and non-discrimination were a central part of the negotiations leading to its adoption. Where provisions of the UNDRIP were thought to deviate from rights already expressed in international law, they were perceived by some States to compromise the fundamental principles of equality and non-discrimination that underpin existing human rights’ instruments. In this way, the extensive discussions about equality and Indigeneity that characterized the development of the UNDRIP are also debates about the continuity and coherency of international human rights law. Unsurprisingly, the most controversial of the UNDRIP’s provisions are those protecting rights and interests that cannot be held by non-Indigenous groups or individuals.

In this chapter, I have been invited to consider Articles 2, 6, and 7(1) of the UNDRIP. My aims are to situate these provisions within existing international and regional human rights law, to point to some major decisions of international bodies and domestic courts on the principles they contain, and, more generally, to draw attention to the different concepts of equality and non-discrimination that animate and justify the various rights contained in the UNDRIP. Section 2 provides a backdrop to the concepts of equality and non-discrimination used in the UNDRIP. Section 3 considers international and domestic law on discrimination against Indigenous individuals and peoples. Section 4 addresses the complex questions that arise where the recognition of Indigenous rights and interests is challenged as a form of discrimination against non-Indigenous people or non-members of the rights-holding group, and considers the ways in which international bodies and domestic courts have addressed these tensions. This section also provides a critical analysis of the concepts of ‘legitimate differentiation’, ‘special measures’, ‘specific rights’, and ‘minority rights’ that have emerged in international human rights law, and discusses the ways in which these can support protections contained in the UNDRIP.

As Article 2 raises vastly more complex issues in its application to Indigenous peoples than Articles 6 and 7(1), and is framed in broad terms open to multiple interpretations, the bulk of the analysis in this chapter is devoted to concepts implicated by that Article.

2.  Equality, Non-Discrimination, and Indigenous Rights in the UNDRIP

2.1  Articles 2, 6, and 7(1) in the Context of the UNDRIP

The Declaration, like the more recent American Declaration on the Rights of Indigenous Peoples (2016), brings together a menu of rights for Indigenous peoples that covers the full spectrum of their interests. Rights protected by UNDRIP provisions are, as Charters observes, ‘different in quality and based on various, sometimes competing, justifications’.12 Because the UNDRIP must take its place among existing human rights instruments, these justifications usually include attempts to reconcile liberal principles (p. 181) of equality and non-discrimination with the particularism of Indigenous experiences and the history of State–Indigenous encounters and relationships. For most of the rights articulated in the Declaration, this is a straightforward endeavour. Indigenous individuals and groups are the beneficiaries of existing human rights instruments and are entitled to all the protections they contain. By the same logic, however, equality-based justifications for Indigenous rights become contentious when brought to bear on provisions and rights that vest only in Indigenous groups, especially where these protect interests held or claimed by Indigenous peoples by virtue of their distinctive status as historically continuous polities. Most prominently, these include rights to traditional territories and to self-governance. The accommodation of these rights within liberal traditions of equality and non-discrimination poses a major conceptual challenge, the complexity of which is evident in both domestic and international judicial responses to Indigenous claims. The assistance offered by the UNDRIP in this regard is limited by the absence in its text of any clear guidance on how Indigenous historic-collective rights are to be reconciled with the rights of individuals and collectives to be free from discrimination.13 In the text of the UNDRIP, this tension manifests in the relationship between Article 2, protecting the right of Indigenous peoples to be free from discrimination, and Article 46, which allows limitations on rights only if those limitations are non-discriminatory,14 and requires an interpretation of UNDRIP provisions that accords with respect for human rights, equality, and non-discrimination.15 Further, Article 2 implies that rights vested in Indigenous peoples must not be exercised in a way that discriminates against Indigenous individuals,16 as do the internal limitations expressed in certain of the collective UNDRIP rights.17

The framing of Article 2 is broad enough to support a range of methods already used in international and domestic law to situate Indigenous rights within jurisprudence on rights to equality and non-discrimination. For the time-being, however, given the agnosticism of the Declaration on conflicts of rights, the lack (to date) of an adjudicatory body to assist with the interpretation of the UNDRIP at the international level, and the absence so far of an established international jurisprudence on the meaning and interpretation of the UNDRIP, the methodologies to be used in balancing or limiting the rights of Indigenous collectives, Indigenous individuals, the public, and third parties are left to States and Indigenous peoples to resolve in their interactions with each another. That said, international and regional treaty bodies have considered Indigenous claims and interests in their advice on the ICERD, the ICCPR, and the ACHR. These have given the distinctive claims and rights of Indigenous peoples purchase in mainstream international (p. 182) human rights law. Likewise, Indigenous claims have been progressed in the domestic law of States, albeit with some major setbacks and with varying degrees of attentiveness to international human rights norms. These bodies of jurisprudence will influence the application of the UNDRIP in international and domestic fora.

Articles 6 and 7(1) of the UNDRIP are relatively uncontroversial restatements of established individual human rights’ protections found in existing human rights instruments. Both draft Articles remained intact during intergovernmental negotiations in the inter-sessional Working Group on the Draft Declaration on the Rights of Indigenous Peoples (hereafter, ‘the Working Group’), and were included unaltered in the text adopted by the UN General Assembly in 2007. The right to a nationality confers certain collateral rights on individuals, including the right to diplomatic protection and the right to enter the country of one’s nationality. It appears in Article 15 of the Universal Declaration of Human Rights (UDHR)18 and Article 20 of the ACHR, and is affirmed as a right that is to be protected on a non-discriminatory basis in the ICERD (Article 5), the CEDAW (Article 9), and the CRPD (Article 18). The right of children ‘to acquire a nationality’ is additionally recognized in Article 24(3) of the ICCPR, and the right of a child to ‘a legally registered name and nationality’ is protected in Article 8 of the CRC. Article 6 of the UNDRIP (then draft Article 5) was one of the only two draft Articles of the UNDRIP to be formally adopted by the Working Group (in 1997), alongside draft Article 43 (now Article 44, affirming that UNDRIP rights apply equally to male and female Indigenous persons).19 States raised few queries with regard to draft Article 5, although some questioned the relationship between this provision and the provisions dealing with Indigenous citizenship and membership in Indigenous communities,20 and others sought to clarify that the reference to ‘nationality’ denoted ‘State nationality’.21

The wording of Article 7(1) of the UNDRIP amalgamates the established right of ‘life, liberty and security of person’ with the phrase ‘physical and mental integrity’. The right to ‘life, liberty and security of the person’ is protected in the UDHR (Article 3); and the right to ‘liberty and security of the person’ is protected in the ICCPR (Article 9), the ECHR (Article 6), and the ACHPR (Article 6). The reference to ‘physical and mental integrity’ may be drawn from Article 4 of the ACHPR, which provides that ‘[e]very human being shall be entitled to respect for his life and the integrity of his person.’22 The (p. 183) wording of Article 7(1) was not amended during the Working Group negotiations. States raised very few concerns about the content of the draft Article, except to note that the phrase ‘physical and mental integrity’ is novel and indeterminate,23 and to propose that references to ‘mental integrity’ be moved to form part of provisions dealing with the prohibition against torture.24 Thus, in respect of Articles 6 and 7(1), the UNDRIP records commitments that States regard as extant in international or regional human rights instruments. Article 2, on the other hand, poses more difficult questions for existing human rights law, and its relevance to the interpretation of the UNDRIP as a whole is hence of particular import.

Article 2 confirms the rights of Indigenous individuals and peoples to ‘equality’ and ‘non-discrimination’. These concepts are interdependent, but functionally distinct. Treating individuals and groups alike, in a formally non-discriminatory way, does not necessarily promote substantive equality. ‘Substantive equality’ requires measures that are responsive to structural disadvantage and negative stereotyping and is understood variously as the equal enjoyment of human rights and fundamental freedoms, and the legal recognition of all human beings as ‘equally deserving of concern, respect and consideration’.25 In circumstances characterized by structural or cultural difference, non-discrimination norms can promote formal equality while leaving substantive inequalities intact, and can exacerbate disadvantage.26 Accordingly, established international legal norms requiring States to ensure that all persons are protected in the full enjoyment of fundamental human rights and freedoms also oblige States to take special measures to achieve substantive equality by securing the advancement of groups denied the full enjoyment of those rights. Equality norms also oblige States to ensure that members of minorities are protected in the communal enjoyment of their languages and cultures, thereby helping to ensure their substantive equality with members of the majority, and with members of other minorities.

It is well established in international law (and in the jurisprudence of some States)27 that discrimination against Indigenous persons or groups on the basis of their Indigeneity or Indigenous origin is prohibited, usually as a form of racial discrimination (a ground that typically encompasses cognates of race, including ethnicity, nationality, colour, descent, and national origin).28 However, the symmetry of non-discrimination norms means that measures benefitting Indigenous peoples can appear to constitute or enable discrimination against non-Indigenous communities and individuals. Fundamental questions arise, then, if distinctive rights protections for Indigenous peoples seem not to be designed with the sole purpose of alleviating Indigenous disadvantage—for example, because they are measures intended to protect historic Indigenous entitlements to land and authority. In the context of (p. 184) the UNDRIP, Article 2 raises a tension that poses a major political and legal challenge for the settler liberal democracies: what concepts of equality and non-discrimination can accommodate or support the distinctive collective rights of Indigenous peoples? These issues provoked some of the most polarizing debates in the Working Group, especially where the rights of Indigenous groups to traditional lands, property, self-governance, and ‘free, prior, and informed consent’ were in issue. As is discussed further below, because Article 2 refers to the rights of Indigenous individuals alongside those of Indigenous peoples, some States were of the view that it should condition the protection and exercise of the Declaration’s collective rights provisions.

In the Second Session of the Working Group, held in 1996, an order of work was agreed, in which draft Articles were organized into clusters and arranged in order of least-to-most controversial.29 Article 2, the centrepiece non-discrimination provision of the Declaration, was included in the ‘least controversial’ cluster, along with draft Articles 1, 44, and 45. In its final form, Article 1 guarantees ‘the full enjoyment, as individuals or collectives, of all human rights and fundamental freedoms’ to Indigenous individuals and peoples;30 Article 45 specifies that ‘nothing in the UNDRIP should be construed as diminishing or extinguishing the rights Indigenous peoples have now or may acquire in the future’; and, as noted, Article 44 attributes the rights in the UNDRIP equally to male and female Indigenous individuals. Together, these Articles comprise the general ‘equality and non-discrimination’ protections in the UNDRIP, linking the Declaration as a whole to the existing body of human rights law by confirming that extant rights are also vested in Indigenous persons and groups. The UNDRIP’s suite of equality norms is further supported by the omnibus Article 46, added in 2006 after intergovernmental negotiations on the text had concluded, which specifies, inter alia, that ‘in the exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be respected’, and that ‘the provisions set forth in this Declaration shall be interpreted in accordance with the principles of … respect for human rights, equality, [and] non-discrimination’.

The prohibition of discrimination against Indigenous peoples on the grounds of their Indigeneity, affirmed by Article 2, is uncontroversial. The principle of non-discrimination on prohibited grounds is deeply embedded within international and regional human rights law. It finds expression as a general fundamental right in the UDHR (Articles 2 and 7), the ICCPR (Articles 2 and 26), the ICESCR (Articles 2(1) and 2(2)), and the CRC (Article 2). Comparable general protections appear in the ECHR (Article 14 and Protocol 12), the ACHR (Articles 1 and 24), the American Declaration of the Rights and Duties of Man (Article II),31 and the ACHPR (Article 2). Non-discrimination in the general human rights’ instruments protects against discrimination on the grounds of: sex or gender; race, colour, descent, ethnic origin, national origin, and nationality; language; (p. 185) religion and religious belief; disability; age; political belief; and marital, parental, and familial status.

The concept of discrimination in human rights law is furthered elaborated in the anti-discrimination treaties, the ICERD and CEDAW, which address discrimination on the basis of race and sex respectively. ‘Racial discrimination’ is defined in Article 1 of the ICERD as:

… any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

A substantively similar definition is used in Article 1 of the CEDAW to define ‘discrimination against women’, and while the ICCPR does not contain a definition of discrimination, the Human Rights Committee (HRComm) has recommended one that is nearly identical to the ICERD and CEDAW definitions.32 Of particular relevance for Indigenous peoples, the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities provides that persons belonging to minorities should be protected in the exercise of their human rights ‘individually as well as in community with other members of their group, without any discrimination’,33 and ILO Convention 169 affirms in its Article 3 that ‘[i]ndigenous and tribal peoples shall enjoy the full measure of human rights and fundamental freedoms without hindrance or discrimination’.34 Finally, the American Declaration on the Rights of Indigenous Peoples specifies that:

Indigenous peoples have the right not to be subject to racism, racial discrimination, xenophobia, and other related forms of intolerance. The states shall adopt the preventive and corrective measures necessary for the full and effective protection of this right.35

Against this backdrop, Article 2 of the UNDRIP draws expressly on the phrasing used by the ICERD Committee in its General Recommendation 23 on Indigenous Peoples. The Committee calls on State Parties to the Convention to ‘[e]nsure that members of indigenous peoples are free and equal in dignity and rights and free from any discrimination, in particular that based on indigenous origin or identity’.36 Thus, Article 2 reflects general concepts of non-discrimination extant in international law, and extends them to expressly prohibit discrimination on the grounds of ‘indigenous origin and identity’, effectively adding these to the list of ‘prohibited grounds’ already enumerated in other international human rights treaties. In so doing, however, Article 2 does not address outstanding questions about the meaning and interaction of equality and non-discrimination in human rights law, nor does it resolve the problem of whether and how (p. 186) these concepts support, or undermine, the various distinctive rights vested in Indigenous peoples and reflected in the UNDRIP.

2.2  Article 2 and Group Rights

One outstanding question implicated by Article 2, of particular import for the UNDRIP as a whole, is whether and in what circumstances the rights of groups can limit or take precedence over the human rights of individuals. As a starting point, the reference to the collective rights of ‘peoples’ in Article 2 is in keeping with the protection extended to groups by Article 2(1) of the ICERD, which provides that ‘each state party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions’, and requires State Parties to take measures to ‘ensure the adequate development and protection of certain racial groups or individuals belonging to them’.37 Accordingly, notwithstanding their concerns about references to the collective rights of Indigenous peoples in other parts of the UNDRIP, the vast majority of States commenting on the draft text of Article 2 in the Working Group were satisfied that the principle of non-discrimination should apply to both individuals and groups. An intervention by Canada on Article 2 is illustrative:

As we mentioned in our statement on Article 1, we will have to review the document with respect to the use of the terms ‘indigenous peoples’ and ‘indigenous individuals’ to ensure consistency. In this case, we agree that this right of non-discrimination should be enjoyed by both the individuals and their collectivities.38

New Zealand likewise endorsed the reference to ‘peoples’ in Article 2, expressly referencing the ICERD on this point:

Discrimination against individuals is also the focus of most international instruments, although some refer to discrimination against groups. The provisions of the [ICERD], encompasses [sic] racial discrimination or incitement directed at groups.39

A few States, however, were so comprehensively opposed to the concept of collective rights that they objected to the use of the phrase even in a provision protecting groups against discrimination. France, Japan, and the United Kingdom, for example, questioned whether the concept of ‘group rights’ could ever be compatible with principles of equality and non-discrimination, and qualified their acceptance of the Declaration with interpretative statements to this effect.40 In 1998, for example, Japan expressed the view that Articles 1 (p. 187) and 2 should be redrafted because ‘human rights basically belong to individuals and so-called collective rights should result in … individual rights’.41

Other States suggested that the reference to individuals in Article 2 could condition the exercise of the group rights recorded elsewhere in the UNDRIP. These States suggested that Articles 1 and 2 should guide the interpretation of other provisions of the UNDRIP, and that the Declaration should ‘specifically acknowledge that role for those Articles’.42 This would have had the effect of bringing equality and non-discrimination norms to bear upon all other provisions of the UNDRIP, potentially requiring rights vested in ‘peoples’, including self-governance rights, to be conditioned by individual rights to non-discrimination (a possibility which is anyhow left open by the interpretative directive in Article 46(3)). Canada, for example, pointed to the need to specify that Indigenous self-governance powers referred to in draft Articles 31 and 34 should be ‘consistent with … human rights standards’,43 while the United States insisted that the separate Indigenous juridical systems that might be supported by Article 34 (then draft Article 33) should ‘nonetheless be consistent with principles of non-discrimination and minimum standards of protection for all members’.44 Article 34, like its draft predecessor, protects Indigenous institutional structures, distinctive customs, spirituality, traditions, procedures, practices, and ‘juridical systems or customs’, and is internally qualified by a clause specifying that the rights it protects must be exercised ‘in accordance with international human rights standards’. Notably, draft Article 31, protecting Indigenous rights to ‘autonomy and self-government’, was not internally qualified in this way, nor was its abbreviated equivalent in the final text of the UNDRIP, Article 4.45

Other States were of the view that draft Article 32 (now Article 33, protecting the right of Indigenous peoples to determine their membership), read in combination with Article 9 (protecting the right of Indigenous individuals to belong to an Indigenous community or nation), raised the possibility of discrimination in membership governance, and implicated ‘an individual’s right to nondiscrimination and due process in questions of membership’.46 Some States argued that the matter could be resolved by subjecting Articles 9 and 32 to the overarching non-discrimination principle in Article 2, and proposed that Articles 2 and 9 should be consolidated to emphasize the non-discrimination requirement inherent in each.47 Canada, for example, was of the view that:

(p. 188)

Although we recognize the community’s right to determine membership, as with all other aspects of government, this power must be subject to the individual’s right to fairness. We therefore believe that the article would be strengthened by a reference ensuring that the decisions to deny membership in a community to an individual are not made on an arbitrary or illegal basis.48

While the final text of the Declaration contains no expressly ‘overarching’ provision affirming the priority of individual rights over the rights of peoples, the tension between collective rights and equality norms was eventually addressed, albeit obliquely (and belatedly), in Article 46.49 This Article expressly allows limitations to be imposed on rights contained in the UNDRIP, where those limitations ‘are determined by law and in accordance with international human rights obligations’, and are ‘non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society’. Further, as noted, Article 46(3) provides that the UNDRIP is to be interpreted in accordance with, inter alia, the principles of ‘respect for human rights, equality [and] non-discrimination’. International, regional, and domestic adjudicatory fora have provided a variety of responses to claims by Indigenous peoples that they have been discriminated against. This body of law is likely to influence the interpretation of Article 2, by giving content to the broad references in that Article to equality and non-discrimination.

3.  Discrimination against Indigenous Peoples: Indigenous Origin and Racial Discrimination

In this section of the chapter, I consider judicial responses to non-discrimination claims made by Indigenous groups or individuals, with a view to assessing the likely impact of the UNDRIP on this emerging body of jurisprudence. While the prohibition of discrimination against Indigenous peoples on the grounds of their Indigeneity is well established in international law, contentious cases in treaty bodies and domestic courts are relatively rare, even in jurisdictions where constitutional or legislative anti-discrimination laws have been in place for some time. In the last several decades, however, non-discrimination norms have emerged as the justificatory basis for the recognition and protection of Indigenous property rights by domestic and regional courts. These developments are discussed below.

In international law, non-discrimination norms have been most thoroughly developed with respect to Indigenous peoples as a prohibition on racial discrimination. The ICERD Committee has confirmed that ‘race’, as defined in Article 1(1) of the Convention, ‘relates to all persons who belong to different races, national or ethnic groups or to indigenous peoples’.50 The direct influence of the ICERD Committee on the development of a body of non-discrimination law on Indigenous peoples is limited, however, by the fact that of the 177 State Parties to the ICERD, only 56 have accepted the Committee’s jurisdiction (p. 189) to hear individual complaints.51 Thus, while no contentious case concerning discrimination against Indigenous peoples has yet been heard under the ICERD’s individual complaints mechanism, the Committee has addressed discrimination against Indigenous peoples in its General Recommendations,52 routinely refers to Indigenous peoples in its concluding observations on State Party reports,53 and has considered Indigenous rights in communications with States under its urgent action and early-warning procedures.54 The HRComm, in contrast, has heard complaints from Indigenous individuals under its Optional Protocol jurisdiction, including claims based on alleged breaches of the ICCPR’s non-discrimination and equality provisions (Articles 2 and 26). The Committee has so far declined to consider the substance of these non-discrimination allegations on their merits, electing instead to deal with Indigenous complaints as claims arising under Article 27 (protecting the rights of individuals as members of minorities), discussed below.55 Like the CERD, however, the HRComm has also recorded its concern about the rights of Indigenous peoples in concluding observations on State Party reports.56

(p. 190) Unlike the UN Treaty Bodies, the Inter-American Court of Human Rights (IACtHR) and the Inter-American Commission on Human Rights (hereafter, ‘the Inter-American Commission’) have produced an extensive body of jurisprudence in contentious cases dealing with claims brought by Indigenous and tribal communities. In a series of cases decided in the last fifteen years, the Court and Commission have found that the failure of State Parties to recognize and protect Indigenous property rights to the same degree as private property rights of other citizens has breached the non-discrimination and equality provisions of the ACHR, read in conjunction with the Convention’s Article 21 property guarantee.57 In the landmark 2001 case of Mayagna v Nicaragua,58 for example, the IACtHR found that the failure of the Nicaraguan State to ‘delimit and demarcate’ the lands of the Mayagna (Sumo) Awas Tingni people ‘violated the right to property protected by article 21 of the American Convention on Human Rights, to the detriment of the members of the … Community, in connection with articles 1(1) and 2 of the Convention’.59 Similarly, according to the Inter-American Commission:

States violate the right to equality before the law, equal protection of the law, and non-discrimination when … they do not grant indigenous peoples ‘the protections necessary to exercise their right to property fully and equally with other members of the … population’.60

In addition to deploying the non-discrimination provisions of the ACHR to require States to recognize Indigenous property rights by formalizing them, the Inter-American Commission has also applied those provisions to advise that discriminatory legal infringement of Indigenous property rights is prohibited by the American Declaration on the Rights and Duties of Man.61 In its 2002 findings in Mary and Carrie Dann (United States), the Inter-American Commission observed that the historic expropriation of the traditional lands of the Western Shoshone was not accompanied by the procedural and compensatory guarantees offered to the holders of private property rights, and accordingly concluded that:

… to the extent the [United States] has asserted as against the Danns’ title in the property in issue based upon the ICC proceedings, the Danns have not been afforded their right to equal protection of the law under Article II of the American Declaration.62

(p. 191) In domestic legal systems, however, while Indigenous claims are seldom litigated as non-discrimination or equal protection claims,63 anti-discrimination law has played a crucial role in prompting State recognition of Indigenous property rights. Domestic anti-discrimination laws have supported claims that Indigenous customary property rights should be protected to the same extent as the legally granted rights of private and registered property owners. In this way, non-discrimination principles have helped to protect those rights, once recognized, from discriminatory infringement or extinguishment. Unlike the IACtHR, domestic courts have not found that anti-discrimination norms and property protections require recognition of Indigenous customary property rights. The decision to recognize customary law as a source of rights instead tends to be regarded by courts as a logically separate and prior one, not a move that States are obliged to take to remedy discrimination.64 That said, ambient human rights and equality principles have been taken into account by courts as reasons to judicially recognize property rights sourced in customary law, as, for example, in Australia and South Africa.

In the Western settler States of Canada, the United States, and New Zealand, Indigenous property claims find purchase in commitments made in historic treaties, and in Indigenous-specific ‘special trust relationships’, concepts of the ‘honour of the Crown’, and fiduciary responsibilities that attend those commitments and govern dealings with Indigenous common law property rights.65 Matters arising from the negotiation of land claim settlements by the settler executives are typically regarded as largely non-justiciable political questions66 or else are rendered non-justiciable by the terms of those agreements.67 Accordingly, Indigenous–State relationships in those countries are increasingly structured (p. 192) by political bargains and characterized by inter-governmental forms of relations, and by claims based on the special attributes of those arrangements, rather than by independent reference to equality-based human or minority rights norms.68 Canada, for example, has provided constitutional protection to Indigenous property and treaty rights in section 35 of the Constitution Act,69 a provision notably positioned outside of the human rights protections of the Charter of Human Rights and Freedoms, and ‘shielded’ from the application of the Charter by section 25.70 New Zealand’s Bill of Rights Act (NZBORA) and Human Rights Act (HRA) have never been used to advance Māori claims in New Zealand’s courts,71 even while Māori successfully sought a decision under the CERD’s urgent action decisions by the ICERD Committee on the Foreshore and Seabed Act 2004 (now repealed), a statute that denied to Māori the right to litigate customary title claims to the foreshore.72 The Committee advised that the Act appeared to ‘contain discriminatory aspects against the Māori’.73 The emphasis on inter-governmental avenues for claims-making in these countries is a reflection of the politically strategic choices of Indigenous peoples, as well as of traditions of judicial deference to the executive in matters involving Indigenous interests and the limited utility of non-discrimination norms in the resolution of disputes requiring the redistribution of property and expenditure of public resources. The equality and non-discrimination provisions of the UNDRIP will support in general terms the reparative ethos of these processes, even if they do not provide an independent basis for Indigenous historic claims.

In Australia, no historic treaties were signed with Indigenous peoples and no trust doctrine resulted from the common law recognition of aboriginal title rights. As a result, anti-discrimination norms have provided the major vehicle for the recognition and protection of Indigenous historic property rights.74 The federal Racial Discrimination Act 1975 (RDA), which incorporates the ICERD into Australian law, has been of pivotal importance, especially given the absence in Australia of a constitutional Bill of Rights or federal legislative bill of rights. The RDA’s prohibition on racial discrimination is especially significant given the constitutional power of Australian federal and State governments to (p. 193) make laws with regard to ‘the people of any race for whom it is deemed necessary to make special laws’,75 a controversial provision that has been interpreted by the High Court to allow the passage of laws that impose burdens as well as benefits on ‘the people of any race’.76 This power has only been used to pass federal laws for Indigenous Australians. The enactment of the RDA thus provided a measure by which to condition or guide the exercise of the constitutional ‘race power’ by state and federal legislatures (although subsequent federal legislation can override the RDA by implication or by express repeal). The RDA has accordingly been suspended three times,77 each time to enable the enactment of federal laws with regard to Indigenous peoples that might otherwise have breached the Act’s non-discrimination provisions. Importantly, however, the RDA has been used to invalidate racially discriminatory laws passed by state legislatures,78 and thus has played a pivotal role in the development of the common law doctrine of aboriginal title by preventing legislative attempts at uncompensated extinguishment. The Australian experience shows the utility of anti-discrimination laws as protection for Indigenous interests in circumstances where other legal and political avenues are not available. The equality and non-discrimination norms of Article 2 of the UNDRIP could resonate substantively with this body of law (and augment it by emphasizing states’ consultative obligations), if Australian courts were amenable to considering the Declaration as a determinative influence on statutory interpretation. Recent jurisprudence suggests, however, that the Australian High Court is not currently inclined to consider the UNDRIP in matters involving the RDA’s application to Indigenous law and policy, even in circumstances where the relevance of international law to the interpretation of the Act is directly in question (see further discussion below).79

Older decisions of the Australian High Court, however, show the crucial influence of international human rights law, and of concepts of equality and anti-discrimination, in the development of the common law on Indigenous property rights. The key case is the landmark 1992 High Court decision: Mabo (No 2) v Queensland (Mabo (No 2)).80 This case provided recognition in common law of ‘native title’ derived from Indigenous traditional laws and customs, finding that native title rights and interests survive the acquisition of sovereignty by the British Crown and remain enforceable where they have not been validly extinguished, surrendered, or abandoned. The RDA was a pivotal precondition of this decision. In its 1988 decision Mabo v Queensland (Mabo (No 1)),81 the High Court had accepted the proposition that if the property rights claimed by the Meriam Islanders were recognized as common law rights, then an Act passed by the State of Queensland to extinguish such rights on terms less favourable than those required in compulsory acquisition of freehold title would be racially discriminatory. The striking down of the Queensland Act for inconsistency with the RDA preserved the ‘status quo ante’ in respect of the claimed native title rights, so that those rights in existence when the Act was passed in 1975 were to be protected prospectively against discriminatory infringement. The 1988 decision paved the way for the High Court’s (p. 194) native title decision in Mabo (No 2) by allowing the substantive issue of recognition to be tried. In the lead judgment, Brennan J framed the judicial recognition of native title as a necessary development of Australian common law, influenced by the growing importance of anti-discrimination principles in domestic and international law:

Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people … A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organization of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands.82

The existence of the RDA, therefore, enabled the High Court to find that the common law native title rights of Indigenous Australians could not be extinguished on terms less favourable than those afforded to the holders of private freehold title in a compulsory acquisition.83 On this basis, subsequent State legislation passed with the aim of extinguishing native title and replacing it with statutory entitlements has been invalidated as racially discriminatory and contrary to the RDA.84

Equality and non-discrimination principles in post-apartheid South Africa have also facilitated the recognition of Indigenous property rights. In 2001, the South African Constitutional Court held that the Indigenous Richtersveld community was entitled to the restitution of their customary property rights over territory in the Northern Cape Province of South Africa, in accordance with post-apartheid legislation restoring property rights to communities dispossessed of land ‘as a result of past racially discriminatory laws or practices’. In doing so, the Court rejected the argument put forward by the South African government and the registered title holder (the mining company Alexkor Ltd) that any customary rights held by the community had not survived the acquisition of sovereignty by the British Crown.85 The Court went on to find that the community had been dispossessed of property rights by discriminatory laws, and declined to accept the defendant’s argument that because the relevant statute left the registered title of some black South Africans intact, it did not discriminate on the basis of race. The Court stated:86

… given that indigenous law ownership is the way in which black communities have held land in South Africa since time immemorial, the inevitable impact of the Precious Stones Act’s failure to recognise indigenous law ownership was racially discriminatory against black people who were indigenous land owners. The laws and practices by which the Richtersveld Community was dispossessed of the subject land accordingly discriminated against the Community and its members on the ground of race.87

(p. 195) To summarize, the non-discrimination principle contained in Article 2 of the UNDRIP gives effect to a prohibition against racial discrimination that forms part of international and regional human rights treaties, and is a central aspect of domestic anti-discrimination law in many States. In some countries, the prohibition serves to confirm that Indigenous property rights should be given the same protections afforded to non-Indigenous property holders, and can encourage political and judicial actors to recognize Indigenous property rights based on customary law. The UNDRIP may yet offer support for Indigenous peoples advancing claims premised on anti-discrimination norms, including claims to historic property, especially where relational, agreement-based justifications for such rights are not available. The next section considers the human rights methodologies that have been used to defend distinctive Indigenous interests and entitlements where these have been challenged as forms of prohibited racial discrimination against non-Indigenous people or against non-members of the right-holding community.

4.  Defending Indigenous Rights: Legitimate Differentiation, Special Measures, and Minority Rights

4.1  The Problem of ‘Preferential Treatment’

In addition to supporting non-discrimination, the methodologies developed by the ICERD Committee and the HRComm provide guidance on ways to defend Indigenous rights against discrimination-based claims. Of particular significance are the concepts of ‘legitimate differentiation’, ‘special measures’, ‘specific rights’, and ‘minority rights’. In this section, I address these concepts in turn, showing first how they have developed in international law and jurisprudence, and then illustrating the use that has been made of them by domestic courts.

The human rights treaty bodies have varied in their explanations of how these justifications differ from one another, and how they relate to principles of non-discrimination and equality. As discussed below, some references to ‘legitimate differentiation’ in the jurisprudence of the HRComm and CERD suggest that this denotes differentiation that is not prima facie discriminatory, while the concept of ‘special measures’ is positioned as an exception that ‘saves’ some discriminatory measures from invalidation. The concept of permanent ‘specific rights’—recently developed by the ICERD Committee—appears to align methodologically with ‘legitimate differentiation’, because it does not depend on overarching concepts of substantive equality. However, ‘legitimate differentiation’ seems to be premised on the idea that the distinction in question is not based on a prohibited ground, or that the corresponding harm is insufficient to render the distinction a ‘discriminatory’ one,88 while the ICERD’s references to ‘specific rights’ (p. 196) do not so far rely on a calculus of this kind. Thus, important questions remain to be addressed about the application of equality and non-discrimination norms to the ‘specific rights’ of Indigenous peoples. The UNDRIP has generated further debate on questions of this kind.

Concerns about the potentially discriminatory impacts of certain Indigenous rights were a dominant theme of negotiations in each of the eleven UNDRIP Working Group sessions. Some States were concerned that draft Articles of the UNDRIP could amount to or enable discrimination against non-Indigenous individuals and peoples. The debates that attended discussion of draft Articles 19 and 20 (now Articles 18 and 21 respectively) are illustrative. Draft Article 19 affirmed, inter alia, that 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’, and draft Article 20 required that ‘[s]tates shall obtain the free and informed consent of the peoples concerned before adopting and implementing [measures that may affect them].’89 State interventions on these draft Articles show a resistance to the implication that Indigenous peoples should have a ‘privileged’ position in the democratic functioning of the State. Canada commented in 1996, for example, that draft Article 19 ‘could be read as meaning that indigenous individuals have special rights in relation to matters that may affect them in the same way that they affect their non-indigenous neighbours’.90 In an attempt to address this question, some States unsuccessfully sought to amend draft Articles 19 and 20 to include reference to principles of equality and non-discrimination, urging consideration of Article 25 of the ICCPR and Article 2 of the Declaration on the Rights of Minorities (both of which confirm individual rights to vote and participate in public life)91 as possible ways to ‘reflect the principle that indigenous individuals have the right to participate fully in public affairs, like any other citizen’, while providing for ‘special measures to allow participation in decisions of the state which directly affect certain areas of particular concern to indigenous people’.92

Some States were also concerned that the draft Articles might confer a ‘veto right’ on Indigenous peoples by allowing them to withhold consent to activities affecting them.93 The possibility that such a right could discriminate against non-Indigenous persons was a major concern of the four CANZUS States (Canada, Australia, New Zealand, and the United States), and is one of the reasons those States have given for their rejection of the draft in the 2007 General Assembly vote, as well as for qualifications in the interpretative statements accompanying their subsequent endorsement of the Declaration. In their joint submission to the Human Rights Council in 2006, the governments of New Zealand, Australia, and the United States explained their opposition to draft Article 20 in these terms:

(p. 197)

The Chair’s text also appears to confer upon a sub-national group, a power of veto over the laws of a democratic legislature (Article 20). We strongly support the full and active engagement of indigenous peoples in democratic decision-making processes, but no government can accept the notion of creating different classes of citizenship. Nor can one group in society have rights that take precedence over those of others. In this context, it is important to be mindful of the [ICERD].94

Given this backdrop, where a government is compelled to articulate a basis for beneficial Indigenous-specific laws, because these are thought to limit the rights of others to be free from discrimination, what sorts of justifications are available in international human rights laws and jurisprudence? The main contenders are, as discussed below, ‘legitimate differentiation’, ‘special measures’, ‘specific rights’, and ‘minority rights’.

4.2  Legitimate Differentiation

The ICERD Committee, the HRComm, the IACtHR, and Inter-American Commission all adhere to the view that there are forms of differentiation that are not discriminatory, either because they do not ‘nullify or impair’ human rights or because there is a ‘reasonable and objective’ basis for the distinction made.95 One outstanding issue in international human rights law, and in the domestic law of some States, is whether ‘legitimate differentiation’ extends beyond ‘special measures’ to encompass acts that are by definition non-discriminatory, even though they are not directed towards the alleviation of disadvantage, in other words, whether ‘special measures’ are a sub-set of ‘legitimate differentiation’ or address an entirely different set of actions. While the HRComm and the IACtHR have tended to read the two methods together, the CERD appears to regard them as logically distinct. The HRComm has advised that if a group’s ‘general conditions’ impair their enjoyment of human rights, the State should take ‘specific action to correct those conditions’, adding that:

… such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant.96

In contrast, in its 1994 General Recommendation 14 on the Definition of Racial Discrimination, the CERD observed that:

… a differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate or fall within the scope of [the special measures provision] of the Convention.97

(p. 198) The distinction is an important one in the context of the UNDRIP, because protections for permanent Indigenous historic rights to land and self-governance do not easily qualify as a special measure if they are not directed to the correction of contemporary Indigenous disadvantage. The logic of ‘legitimate differentiation’ suggests that such measures might yet be justified because they do not impair the human rights of others, or because they otherwise serve the ‘reasonable and objective’ aims of a settler or Indigenous government.

The concept of legitimate differentiation as it has been developed by the HRC and the CERD is broadly based on the idea that the like treatment of differently situated persons may compromise substantive equality. In its general jurisprudence, the CERD has made it clear that non-discrimination need not entail uniform treatment where ‘there are significant differences in situation between one person or group and another, or, in other words, if there is an objective and reasonable justification for differential treatment’,98 or ‘if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate’.99 Similarly, in interpreting the ICCPR, the HRComm has observed that ‘not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant’,100 and has included special measures and ‘affirmative action’ within its broader conception of legitimate differentiation.101 Could this approach offer a way to support some or all of the group rights set out in the UNDRIP, in the event that it is suggested that these unreasonably limit the rights of others to be free from discrimination? Unless the concept of ‘legitimate differentiation’ is expanded beyond the few contentious cases in which it has been deployed to date in international law, the answer is likely to be no.

There are very few examples of legitimate differentiation in the HRComm’s Optional Protocol jurisprudence. Cases where potentially discriminatory measures were found to be forms of legitimate differentiation include: differentiation between private and public schools in the allocation of State funding;102 differentiation between persons aged over 60 years and younger persons in fees for public transport, library services, museum entries, and social and cultural activities;103 and differentiation between natural and foster children in respect of child welfare payments.104 These seem removed from the distinctions between Indigenous and non-Indigenous persons that underpin Indigenous rights to property, self-governance, and ‘free, prior, and informed consent’ in the UNDRIP—the distinctions that proved most controversial during its negotiation. Importantly, none of the HRComm decisions on legitimate differentiation turn on distinctions made on the basis of race.

(p. 199) For the purposes of this chapter, however, it is important to note that the HRComm has used the concept of legitimate differentiation in one relevant context, to justify the legislative criteria used to allocate rights to vote in New Caledonia’s self-determination referenda. Here, however, although it was argued that the criteria differentiated on the basis of race and ethnicity, the HRComm found that the criteria were in fact premised on residence, so that no prohibited ground was implicated, and so that they need not enter into an assessment of the corresponding harm caused by the distinction. In Gillot v France,105 the authors, who were ‘residents of New Caledonia from metropolitan France’, claimed that the voting law discriminated against them on the basis of ethnic origin and nationality, because they were denied the right to vote, while voting rights were ascribed to persons who were Kanaks (members of the ‘Melanesian community present in New Caledonia for approximately 4,000 years’)106 and Caldoches (‘persons of European descent present in New Caledonia since colonization in 1853’).107 The Committee was satisfied that the criteria ‘establishe[d] a differentiation between residents as regards their relationship to the territory, on the basis of the length of “residence” requirement … whatever their ethnic origin or national extraction’108 and concluded that:

Without expressing a view on the definition of the concept of ‘peoples’ as referred to in article 1 [of the ICCPR], the Committee considers that, in the present case, it would not be unreasonable to limit participation in local referendums to persons ‘concerned’ by the future of New Caledonia who have proven, sufficiently strong ties to that territory.

This precedent points to a methodology that could potentially support some of the rights contained in the UNDRIP. If an Indigenous right could be framed as a distinction between Indigenous and non-Indigenous peoples that is not premised on the prohibited grounds of race or ethnicity, then it may escape a discrimination-based analysis. The strong correlation of Indigeneity and race in international and domestic law may make this prospect remote, but the possibility remains that some rights may be claimed by Indigenous groups that can be defended as measures allocated on the basis of residency, political affiliation, or cultural connection and therefore not interchangeable with measures implicating the prohibited grounds of descent, ethnicity, or nationality. As discussed below, the jurisprudence of the US Supreme Court on the status of the members of federally recognized tribes seems to follow a logic of this kind.109 In the small body of jurisprudence on this point, courts in Australia, Canada, and New Zealand have, however, characterized distinctions between Indigenous and non-Indigenous persons110 or between tribal members and non-members as distinctions based on race.111

Legitimate differentiation was also accepted by the Committee on Economic, Social and Cultural Rights (CESCR) in its General Comment 20, in which it observed that ‘[d]ifferential treatment based on prohibited grounds will be viewed as discriminatory unless the justification for differentiation is reasonable and objective.’112 Similar principles (p. 200) can be found in the jurisprudence of the ECHR,113 and the IACtHR has occasionally deployed the logic of legitimate differentiation in its consideration of Indigenous and tribal claims under Articles 2 and 21 of the American Convention, often as part of a discussion about special measures. The Court’s statement in Saramaka v Suriname is illustrative:

… the State’s argument that it would be discriminatory to pass legislation that recognizes communal forms of land ownership is also without merit. It is a well-established principle of international law that unequal treatment towards persons in unequal situations does not necessarily amount to impermissible discrimination. Legislation that recognizes said differences is therefore not necessarily discriminatory. In the context of members of indigenous and tribal peoples, this Court has already stated that special measures are necessary in order to ensure their survival in accordance with their traditions and customs.114

Finally, the African Commission on Human and Peoples’ Rights has borrowed from the jurisprudence of the IACtHR and the Inter-American Commission to find that Kenya owed an obligation under the ACHPR to recognize the Indigenous status and property rights of the Endorois peoples:

The African Commission is of the view that the Respondent State cannot abstain from complying with its international obligations under the African Charter merely because it might be perceived to be discriminatory to do so. It is of the view that in certain cases, positive discrimination or affirmative action helps to redress imbalance … Besides, it is a well established principle of international law that unequal treatment towards persons in unequal situations does not necessarily amount to impermissible discrimination.115

Legitimate differentiation has found less purchase in domestic law implicating Indigenous interests. In recent jurisprudence on racial discrimination claims involving Indigenous peoples, for example, the High Court of Australia has declined to develop a category of ‘legitimate differentiation’, although one had been deployed by lower courts.116 In the 2013 case of Maloney v The Queen, discussing section 10 of the RDA (which, broadly, provides that if persons of one race enjoy a right to a more limited extent than persons of another race, the section operates to remove the limitation), one judge explained the Court’s interpretative stance as follows:

One understanding of ‘discrimination’ is that differential treatment does not amount to discrimination if that treatment is justifiable. Transplanting this understanding to s 10 would cut down the section’s operation. Section 10 does not say that persons of a particular race may enjoy a right (p. 201) to a more limited extent than persons of another race by reason of a Commonwealth, State or Territory law if that difference is justifiable or proportionate to a legitimate end. If the law is not a special measure within the meaning of s 8(1), the conclusion that persons of a particular race enjoy a right to a more limited extent than persons of another race is necessary and sufficient to engage s 10.117

However, as discussed below, in some settler States, laws directed to Indigenous peoples as groups have been exempted or shielded from human rights and non-discrimination law in order to preserve the special constitutional responsibilities of settler executives and legislatures in Indigenous affairs. These laws and the accompanying jurisprudence sometimes appear to share the logic animating the international law concept of legitimate differentiation, at least as far as they implicitly rely on the reasonableness and legitimacy of differential beneficial measures for Indigenous peoples. In some cases, Indigenous law and policy is insulated from non-discrimination norms by express legislative or constitutional provisions and, in others, by judicial decisions that designate Indigenous communities as political entities, so that the distinction in question is not one based on race.

The latter approach was adopted by the US Supreme Court in the seminal case of Morton v Mancari (1978). In this case, the Bureau of Indian Affairs’ hiring preference for Indians was found to be ‘granted to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities’, a distinction that ‘turns on the unique legal status of Indian tribes under federal law and upon the plenary power of Congress, based on a history of treaties and the assumption of a “guardian-ward” status’.118 In explaining the consequences of applying strict scrutiny to federal Indian laws, like the one in question, the Court observed that:

If these laws, derived from historical relationships and explicitly designed to help only Indians, were deemed invidious racial discrimination, an entire Title of the United States Code … would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized.119

Elsewhere, however, even where the Indigenous group in question is identified as a particular tribe or historic community, courts have found that the distinction between members and non-members is one based on race. To summarize the (small) body of comparative law on the correlation between these categories, in Australia distinctions in law between Aboriginal and non-Aboriginal persons,120 traditional land owners and persons who are not traditional land owners,121 and holders of native title and holders of freehold title122 have been understood as distinctions made on the basis of race. In Canada, a distinction made between members of named First Nations and non-members was found to differentiate on the grounds of race (although it was nonetheless saved as a ‘special measure’ designed to ameliorate disadvantage).123 Finally in New Zealand, applicants who were not eligible for funded tertiary education placements reserved for persons of ‘Māori or Pacific Island descent’ successfully claimed that they had been ‘refused by reason of, or because of, [their] race’.124

(p. 202) In Canada, ‘aboriginal and treaty rights’ are protected by section 35 of the Canadian Constitution, which shields those rights from anti-discrimination challenges brought under the Charter of Human Rights and Freedoms. Section 25 specifies that Charter rights ‘shall not be construed as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada’.125 Current debates turn on the degree to which section 25 ‘shields’ section 35 rights from Charter provisions,126 and raise the possibility that section 25 may render aboriginal and treaty rights ‘non-discriminatory’ by preventing the application of the Charter’s section 15 non-discrimination provision where s 35 rights are at stake.127 In the 2008 Supreme Court case of R v Kapp, the majority queried whether, in a relevant case, section 25 ‘would constitute an absolute bar’ to a Charter-based claim ‘as distinguished from an interpretive provision informing the construction of potentially conflicting Charter rights’.128 Another example of a partial exemption from anti-discrimination law for Indigenous rights is the federal Canadian Bill of Rights Act 1976. Until 2011, any matter falling within the remit of the federal Indian Act was expressly exempt from the scope of the Bill of Rights Act, including the powers devolved to First Nations under the Indian Act. After extensive debate, the exemption was finally removed, but in applying the amended Bill of Rights Act to First Nations, courts are required to give ‘due regard to First Nations’ legal traditions and customary laws, particularly the balancing of individual rights and interests against collective rights and interests’.129

These precedents show that while the language of ‘legitimate differentiation’ has not yet found much purchase in domestic law, comparable ‘exceptions’ have been developed by legislatures and courts to support Indigenous rights that might otherwise constitute prohibited racial discrimination, either by referring to express constitutional protections or by holding that protections for Indigenous rights do not amount to distinctions based on race. The language of section 2 of the UNDRIP does not identify legitimate differentiation as a preferred methodology for the interpretation of the Declaration as a whole, but throughout the UNDRIP, the identification of Indigenous peoples as peoples suggests they should be understood as political communities or polities, or nations, rather than as racial groups. It is conceivable, therefore, that legitimate differentiation may find a place in domestic and international law as a means by which to deflect racial discrimination claims by reference to the political attributes of Indigenous peoples as bodies politic, and by reference to their unique historic relationships with settler governments. This much seems to be the thrust of the ‘specific rights’ concepts deployed by the CERD in its General Recommendation 32 (discussed below). It is an approach that sits well with the relational, political, and agreement-based qualities of State–Indigenous engagement in the CANZUS States. Much depends on whether international and regional treaty bodies are prepared to extend the legitimate differentiation doctrine beyond the few scenarios in which it has been applied to date, and whether the principle will merge, conceptually, with the idea of permanent ‘specific rights’ advanced by the ICERD Committee.

(p. 203) 4.3  ‘Special Measures’ and ‘Specific Rights’

Some of the rights contained in the UNDRIP could plausibly be defended as special measures, designed to secure the ‘adequate advancement’ of Indigenous peoples. The concept is mentioned only once in the UNDRIP, in Article 21(2), referencing the obligation of States to improve the special and economic conditions of Indigenous peoples. Nonetheless, given its prominence in international law on Indigenous rights, it seems likely to be drawn on as a way to justify distinctive laws and policies for Indigenous peoples, including those giving effect to rights protected by the UNDRIP.

The principle of substantive equality that structures international human rights law is expressed in the texts of treaties and in the jurisprudence of treaty fora as the concept of ‘special measures’. The concept requires (or in the case of the ECHR, allows) States to take positive action to address the inequality experienced by disadvantaged groups. The principle of special measures is most closely associated with Articles 1(4) and 2(2) of the ICERD which oblige State Parties to take ‘temporary special measures designed to secure to disadvantaged groups the full and equal enjoyment of human rights and fundamental freedoms’.130 Special measures provisions also appear in Article 4 of the CEDAW, Article 5 of the ECHR, and Article 20(1) of ILO Convention 169 (‘to ensure the effective protection with regard to recruitment and conditions of employment of workers belonging to [indigenous and tribal] peoples’). The CERD has addressed special measures in its general jurisprudence, and has sometimes urged States to take special measures in respect of Indigenous peoples131 (or has welcomed existing special measures for such peoples132) as part of its Concluding Observations on State Party reports. The HRComm has also developed a concept of special measures as part of its recommendations on ‘legitimate differentiation’, and from time to time has urged States to adopt special measures for the benefit of Indigenous peoples.133

Special measures are controversial because they can appear to compromise formal equality and are by definition addressed to the rights and interests of groups rather than individuals. The CERD has emphasized that ‘… special measures are not an exception to the principle of non-discrimination but are integral to its meaning and essential to the Convention project of eliminating racial discrimination and advancing human dignity and effective equality’.134 As such, according to the Committee, while special measures may amount to the preferential treatment of one racial group over another, they are to be distinguished from ‘unjustifiable preferences’, because they are designed to promote substantive equality.135 Further, according to the CERD, special measures are limited (p. 204) by proportionality tests. They must ‘be appropriate to the situation to be remedied, be legitimate, necessary in a democratic society, respect the principles of fairness and proportionality, and be temporary’ (emphasis added).136 For this reason, the measures must be brought to an end when substantive equality has been achieved, and ‘should not lead to the maintenance of separate rights for different racial groups’.137

Accordingly, special measures seem to provide a partial justification for certain provisions of the UNDRIP, by permitting (and in fact requiring) preferential treatment to overcome the effects of historic and continuing discrimination against Indigenous peoples. Some State participants in the UNDRIP Working Group argued that a general provision should be included in the text to endorse the use of special measures for Indigenous peoples, in order to supplement the non-discrimination principle expressed in Article 2. For example, in its 1996 intervention on draft Article 2, Canada observed that:

With a view to addressing historic or systemic discrimination, states may need to institute special measures for the purpose of improving the situation of indigenous individuals or people. If this were done, we might include a statement that such special measures would not be considered discriminatory, in line with the similar provisions included in the [ICERD] and the Declaration on the Rights of Minorities.138

While the final text of Article 2 does not contain a reference to special measures, a second clause was added to Article 21(2) in 2006, specifying that ‘[s]tates shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their economic and social conditions.’139 This is the only express reference to special measures in the text of the Declaration. Whether it extends the possibility of special measures to areas not connected to Indigenous socio-economic well-being—for instance, to measures addressing cultural disadvantage, historic injustice, or past discrimination—is an open question. In the context of the ICERD, much depends on the scope of the ‘human rights and fundamental freedoms’ set out in section 5’s non-exhaustive list, since it is the unequal enjoyment of those rights and freedoms which triggers States’ obligations to take special measures. In the case of Indigenous-specific rights, such as those to historic property and self-governance, an element of circularity is evident. Are the UNDRIP provisions on human rights and fundamental freedoms to be regarded as falling within the ambit of section 5, so that their non-enjoyment is to be remedied by special measures? For the time being at least, special measures are correlated in domestic law with contemporary disadvantage relative to others in comparable circumstances,140 rather than historic dispossession, although Indigenous disadvantage sometimes operates as a presumption at a State-wide level (rather than by reference to the circumstances of a particular group or individual).141 The boundary between special measures and permanent rights was (p. 205) addressed by the CERD in its recommendations on ‘specific rights’ for minorities and Indigenous peoples, discussed below.

As noted, special measures provide justification for Indigenous rights where these can be connected to Indigenous disadvantage in the enjoyment of human rights. The requirement of temporality, however, is a challenging one for Indigenous peoples claiming permanent rights to governance and property lost as a result of historic injustice. Historic Indigenous rights are not claims to a share of primary goods on terms equal to those of other individuals, but to particular property and powers that were held by the predecessors of Indigenous communities and have been or should have been inherited by their descendants. The justificatory basis of such rights does not evaporate when Indigenous peoples enjoy equality in other respects with non-Indigenous members of a settler society. Instead, the rights find their basis in measures of continuity that connect contemporary communities with their historic Indigenous antecedents: communities possessing the attributes (sovereignty, self-determination, territory) that are now claimed by Indigenous groups, in perpetuity, as their successors. Since these rights may be difficult to defend as temporary special measures designed to ‘[secure] adequate advancement of certain racial or ethnic groups or individuals’, they raise again the possibility that protections for Indigenous property and self-governance could conflict with norms of non-discrimination in international and domestic law.

This problem has been addressed in part by the ICERD Committee in its 2009 General Recommendation 32 on special measures, passed two years after the adoption of the UNDRIP, in which it draws a distinction between ‘special measures’, and what it calls ‘specific rights’ vested in particular groups, including Indigenous peoples. Specific rights, according to the Committee, include:

… the rights of persons belonging to minorities to enjoy their own culture, profess and practice their own religion and use their own language, the rights of indigenous peoples, including rights to lands traditionally occupied by them, and rights of women to non-identical treatment with men, such as the provision of maternity leave, on account of biological differences from men.142

These rights, the Committee observes, ‘are permanent rights, recognized as such in human rights instruments, including those adopted in the context of the United Nations and its specialized agencies’.143 The purpose of such rights is not (on its face at least) to ensure substantive equality, but rather is ‘to secure the existence and identity of groups such as minorities, Indigenous peoples and other categories of person whose rights are similarly accepted and recognized within the framework of universal human rights’.144 This is a significant adaptation of non-discrimination principles that points in part to the impact of the UNDRIP on the development of mainstream international human rights law. The ‘specific rights’ category identified by the ICERD Committee could encompass and support two further justifications for the permanent collective Indigenous rights set out in the UNDRIP—the logic of minority rights and of ‘historic Indigenous rights’.

4.4  The Rights of Minorities and Their Members

Minority rights methodologies can also support some (but not all) of the distinctive rights set out in the Declaration, so giving some content to the equality and non-discrimination norms articulated in Article 2 (and evidenced in Articles 6 and 7(1)). Minority rights, (p. 206) typified by Article 27 of the ICCPR and elaborated in the Declaration on Minorities, are collectively exercised individual rights. As part of their right ‘to enjoy their own culture’ in community with other minority members, persons belonging to ethnic, religious, or linguistic minorities have rights to form and maintain communities without undue interference from the State, and to enjoy positive measures designed to protect their capacity to do so. The HRComm has advised that minority rights further public as well as special interests, noting that ‘[t]he protection of these rights is directed to ensure the survival and continued development of cultural identity, thus enriching the fabric of society as a whole.’145 Significantly, protections for members of minorities can amount to protections for the group as a whole, approximating group rights in ways that could support some of the Indigenous rights contained in the UNDRIP. In the case of Indigenous peoples, for example, the HRComm has interpreted the concept of ‘culture’ used in Article 27 as including practices ‘closely associated with territory and use of its resources’.146 On one reading, minority rights of this kind are not ‘group rights’ properly so-called, because they are reducible to the rights of individual members of the minority, in the same way that freedoms of association and religion support the formation and maintenance of groups. However, the distinction is not clear-cut, because protections for minority members may require protections for minorities qua groups, and as the CERD has advised, these protections may be permanent.147

In the early sessions of the Working Group, where the conceptual framing of the Declaration was most comprehensively debated, some States argued that the UNDRIP text as a whole should be reformulated to match the concept of ‘minority rights’ used in mainstream international law, and so avoid some of the conceptual problems associated with ‘group rights’ in the Declaration. The United States, for example, suggested that the UNDRIP should adopt the ‘approach taken by the Declaration on the rights of persons belonging to National or Ethnic Religious and Linguistic minorities, which refers throughout to “persons belonging to minorities” rather than “minorities” ’.148 States also suggested that provisions of the Declaration on Minority Rights should provide a model for the redrafting of certain contentious Articles referencing collective rights, including draft Articles 2, 19, and 20 (discussed above).149 Proponents of Indigenous rights have strenuously rejected the conflation of Indigenous and minority rights, on the basis that Indigenous peoples have a political and legal status as historic ‘peoples’ that distinguishes their claims and rights from those of ‘simple minorities’.150

(p. 207) However, the jurisprudence of the HRComm suggests that minority rights-based justifications can accommodate at least some permanent protections for Indigenous rights. The HRComm has specifically noted the need to differentiate between members of minorities and other persons in its General Comment 23 on Article 27, observing that ‘the obligations placed upon States parties under Article 27 have sometimes been confused with their duty under Article 2(1) to ensure the enjoyment of the rights guaranteed under the Covenant without discrimination and also with equality before the law and equal protection of the law under Article 26’,151 and noting that ‘[s]ome States parties who claim that they do not discriminate on grounds of ethnicity, language or religion, wrongly contend, on that basis alone, that they have no minorities.’152 However, the Committee has also noted that ‘Article 27 must be construed and applied in the light of … the provisions against discrimination, such as articles 2, 3 and 26, as the case may be’.153 Thus, a tension remains in HRComm jurisprudence between permanent protections for minorities as groups, and the need to construe Article 27 in light of the ICCPR’s non-discrimination provisions.

The situation is no clearer where the relationship between the ICCPR’s non-discrimination provisions and its jurisprudence on special measures for minorities is in question. As noted above, the HRComm accepts that the protection of members of minorities sometimes requires ‘positive measures’ to be taken to ‘protect the identity of a minority’ itself.154 Unlike the ICERD, however, the ICCPR does not contain a ‘special measures’ provision. The HRComm has not elaborated a concept of substantive equality on which to base a special measures ‘exception’ to the ICCPR’s non-discrimination provisions, but has confined itself instead to noting that ‘positive measures’ must ‘respect the provisions of articles 2.1 and 26 of the Covenant both as regards the treatment between different minorities and the treatment between the persons belonging to them and the remaining part of the population’.155 Such measures may, however, constitute a legitimate differentiation under the ICCPR if they ‘are aimed at correcting conditions which prevent or impair the enjoyment of the rights guaranteed under article 27’ and ‘are based on reasonable and objective criteria’.156 Thus, the HRComm’s guidance leaves open the question of whether protections for minorities and their members are forms of legitimate differentiation, or whether these are only legitimate if they are designed to correct a disparity in the enjoyment of fundamental human rights and freedoms (including Article 27). If the latter, the HRComm seems to come close to equating legitimate differentiation for minorities with temporary special measures of the kind required by the ICERD. In summary, minority rights approaches developed by the HRComm supply an inchoate equality-based framework for the assertion and defence of those rights, akin to both the ‘special measures’ and ‘specific rights’ approaches advanced by the CERD. Thus, the most that can be said at this stage is that the HRComm’s emerging jurisprudence and advice on minority rights may assist in the interpretation and augmentation of the equality and non-discrimination principles set out in Article 2 of the UNDRIP, and so support at least some of the collective rights contained in the UNDRIP even where these are not addressed to Indigenous material disadvantage, albeit with the caveat that this justification would likely entail that those rights be qualified by overarching non-discrimination and equality norms.

(p. 208) The Inter-American Commission’s jurisprudence on Indigenous rights also reveals an interpretation of special measures that appears less reliant on indicia of ‘disadvantage’ than that offered by the ICERD Committee. The Commission has placed a strong emphasis on the need for ‘special measures’ on the part of States to protect the distinctive cultural attributes of Indigenous and tribal communities, and to secure their property rights. In Mary and Carrie Dann v United States, the Commission observed the emergence of a body of human rights norms and principles applicable to Indigenous peoples, and noted that:

Central to these norms and principles is a recognition that ensuring the full and effective enjoyment of human rights by indigenous peoples requires consideration of their particular historical, cultural, social and economic situation and experience. In most instances, this has included identification of the need for special measures by states to compensate for the exploitation and discrimination to which these societies have been subjected at the hands of the non-indigenous.157

Similarly, in Saramaka v Suriname, the IACtHR used the phrase ‘special measures’ to give content to the equality guarantee contained in Article 1(1) of the Convention, noting that ‘members of indigenous and tribal communities require special measures that guarantee the full exercise of their rights, particularly with regards to their enjoyment of property rights, in order to safeguard their physical and cultural survival.’158

In domestic legal systems, some constitutional and legislative bills of rights contain express reference to special measures as an exception to the general prohibition of discrimination, or as an ex ante defence or justification for laws that differentiate on the basis of race.159 Special measures, however, are a precarious basis on which to assert Indigenous rights, because while they can save protections for Indigenous interests from challenge, they also require that those protections expire when equality has been achieved. In Australia, the federal Native Title Act 1993, which provides a statutory framework for the recognition and protection of permanent native title rights derived from Indigenous traditional laws and customs (albeit while also placing a high burden of proof on Indigenous claimants), is described in its Preamble as a ‘special measure’, which is to be read and interpreted subject to the provisions of the ICERD via its incorporating statute—the Racial Discrimination Act.160

The 2013 Australian High Court case of Maloney v The Queen demonstrates a particularly controversial use of the ‘special measures’ provisions of the ICERD (incorporated by the RDA). In this case, measures criminalizing the possession of alcohol were imposed by the Queensland government on the Indigenous Bwgcolman community of Palm Island. Finding that the restrictions limited the enjoyment by members of the community of their fundamental human rights and so were racially discriminatory on their face, the Court went on to conclude that they were saved as ‘special measures’, because they were ‘taken (p. 209) for the sole purpose of securing the adequate advancement of the Indigenous people of Palm Island’. In interpreting the RDA, which cross-references to the ICERD provisions on special measures, the High Court declined to consider the jurisprudence of the ICERD Committee, especially in its General Recommendation 23 on Indigenous Peoples and its General Recommendation 32 on Special Measures. Contrary to the Committee’s view, the High Court decided that special measures need not be accompanied by consultation with the beneficiary community:

The text of Art 1(4) of the ICERD, as imported by the RDA, did not bring with it consultation as a definitional element of a ‘special measure’. Nor can such a requirement be imported into a text which will not bear it by the subsequent opinions of expert bodies, however distinguished.161

The High Court also declined to apply the relevant provisions of the UNDRIP, including, most relevantly, Article 19, requiring States to consult with Indigenous peoples in order to obtain their free, prior, and informed consent ‘before adopting and implementing legislative or administrative measures that may affect them’. Accordingly, in Maloney v The Queen, the ‘special measures’ provisions of the ICERD, incorporated into the RDA, were used to defend discriminatory restrictions imposed on an Indigenous community. Significantly, the person challenging the measure was a member of the beneficiary community. This approach differs qualitatively from the use of special measures to defend ‘preferential treatment’ from challenges brought by persons who are denied the benefit in question. This latter, more orthodox use of special measures was deployed by the Australian High Court in its 1985 decision Gerhardy v Brown. In this case, the statutory rights of the Ngaanatjara, Pitjantjatjara, and Yungkutatjara peoples to exclude others from their traditional lands were defended as special measures against a challenge by an (Indigenous) non-member of the community who had been denied entry. The Court in Maloney v The Queen declined to embrace obiter pronouncements made in Gerhardy v Brown on the desirability of consultation, where Brennan J expressed the view that:

[T]he wishes of the beneficiaries for the measure are of great importance (perhaps essential) in determining whether a measure is taken for the purpose of securing their advancement. The dignity of the beneficiaries is impaired and they are not advanced by having an unwanted material benefit foisted on them.162

The logic of ‘special measures’ and substantive equality was also at stake in a Canadian Supreme Court case, R v Kapp (2008), based on section 15(2) of the Canadian Charter of Human Rights and Freedoms. Members of specified First Nations had been issued with communal one-day fishing licences. A group of predominantly non-Indigenous fishers argued that the issuance of the licences discriminated against them on the grounds of race, and so violated the Charter’s equality provisions. The Court found that while the applicants had ‘established that they were treated differently based on an enumerated ground, race’, in terms of section 15(1),163 the measure was nonetheless protected by section 15(2) as a ‘law, program or activity that has as its object the amelioration of conditions of disadvantaged (p. 210) individuals or groups’.164 The Court emphasized in its reasoning that ‘sections 15(1) and 15(2) work together to promote the vision of substantive equality that underlies s. 15 as a whole’,165 and that ‘[i]n essence, s. 15(2) … seeks to protect efforts by the State to develop and adopt remedial schemes designed to assist disadvantaged groups’,166 in this case, by addressing the social and economic disadvantage of the First Nations in question. Crucially, according to the Court, ‘[n]ot all members of the group need to be disadvantaged, as long as the group as a whole has experienced discrimination’,167 and, while the named First Nations were ‘in fact disadvantaged in terms of income, education and a host of other measures’,168 in any case, ‘the disadvantage of aboriginal people is indisputable’.169

According to the Court, if section 15(2) is satisfied, the need for a section 15(1) analysis (to decide whether the differentiation is in other respects discriminatory) is obviated altogether.170 Rather than operating as an exception to discrimination (as per the Australian High Court’s treatment of ‘special measures’ in Maloney v The Queen), in R v Kapp the section 15(2) substantive equality provision functioned as a threshold test in its own right, limiting the types of differentiation that will be assessed for discriminatory impact. Thus, the Canadian Supreme Court has embraced, without reference to the ICERD, a concept of ‘special measures’ that is comparable to the approach taken by the CERD, embracing a broad view of substantive equality in the application of anti-discrimination law.171

In contrast, in New Zealand, the ‘special measures’ provisions of the NZBORA 1990172 and the HRA 1993173 have not provided a vehicle for the assertion or defence of distinctive rights for Māori, likely because most collective claims-making is channeled through the political processes of the Treaty of Waitangi claims settlement process, and through consultation required by the Treaty. In fact, in its 2007 observations on New Zealand’s State Party report, the ICERD Committee discouraged New Zealand from framing its laws and policies on Māori rights under the Treaty of Waitangi as ‘special measures’, foreshadowing its elaboration of ‘permanent specific rights’ in its 2009 General Recommendation 32:

The Committee is concerned that, in the report of the State party, historical treaty settlements have been categorized as special measures for the adequate development and protection of Māori. … [and] draws the attention of the State party to the distinction to be drawn between special and temporary measures for the advancement of ethnic groups on the one hand, and permanent rights of indigenous peoples, on the other.174

In Amaltal Fishing Co Ltd v Nelson Polytechnic (No 2),175 the ‘special measures’ provision of the HRA was considered by the New Zealand Human Rights Complaints Review Tribunal. In this case, applicants who were ineligible for funded tertiary education placements reserved by a polytechnic for persons of ‘Māori or Pacific Island descent’ (p. 211) successfully claimed that they had been ‘refused by reason of, or because of, [their] race’.176 The Human Rights Complaints Review Tribunal found that the polytechnic was in prima facie breach of the HRA, and had failed to make out a defence to the challenge, because they had declined to bring evidence to show that ‘Māori or Pacific Islanders need, or may reasonably be supposed to need, assistance or advancement in order to achieve an equal place with other members of the community’.177 Without such evidence, the tribunal could not satisfy itself that ‘appropriately qualified young Māori or Pacific Island men or women’, at whom the course was targeted, needed assistance or advancement to achieve an equal place with other young persons with ‘similar aspirations’.178

5.  Conclusion

The UNDRIP’s protections for collective historical Indigenous rights to property, self-governance, consultation, and ‘free, prior, and informed consent’, alongside individual rights to equality and non-discrimination, are perhaps its most novel and important contribution to international human rights law. Much of the debate in the drafting of the Declaration concerned the possibilities and challenges of reconciling these rights in application to particular claims and disputes. The UNDRIP does not provide a blueprint of a way forward on these difficult issues, but it undeniably represents the view of the international community that such reconciliation is possible and desirable. The UNDRIP’s Articles 6 and 7(1) record rights to a nationality, and to security and integrity of the person, that are well established in mainstream international rights human law, and confirms that these protections are also owed to Indigenous individuals. Article 2 has a dual aspect. It prohibits discrimination against Indigenous individuals and peoples and provides that they are equal to all other individuals and peoples.179 The broadly framed protections contained in the Article encode some of the major controversies associated with Indigenous rights and the need to reconcile these with the principle of non-discrimination that is a central pillar of international and domestic human rights law. The prohibition against discrimination accords with well-established prohibitions of discrimination against individuals and groups on the basis of race. Rights to property, self-governance, and consultation pose questions about the extent to which these might discriminate against non-Indigenous peoples or persons who are not members of the group that holds these rights. There are strands of reasoning within human rights jurisprudence that serve to support these distinctive rights, including the concepts of: ‘legitimate differentiation’ (including where Indigenous rights can be framed as the rights of political communities that do not implicate prohibited grounds of discrimination); ‘special measures’ (which support UNDRIP rights that address Indigenous disadvantage and can reasonably be described as temporary); ‘specific rights’ (which are a nascent category that may not require reference to formal or substantive equality and so could provide support for many of the rights recorded in the UNDRIP); and ‘minority rights’ (which protect the rights of individual members, but may also support the rights of Indigenous peoples where these do not discriminate against non-members). Finally, some Indigenous rights are (p. 212) supported domestically by Indigenous-specific laws that are not subjected to non-discrimination methodologies. These include: special rights provisions (such as section 35 of the Canadian Constitution); common law doctrines of trust and fiduciary duty (such as those associated with the ‘honour of the Crown’ principle in Canada and New Zealand); and treaties, land claim settlements, and other jurisdictional arrangements concluded between States and Indigenous peoples. In addition, non-discrimination principles have also served as a catalyst for agreement-making, claims settlement processes, and the recognition of Indigenous property rights. Taken together, these various methodologies show the efforts of international treaty bodies and domestic courts to bridge the gap between the particularity of Indigenous peoples’ experiences and in efforts to interpret and implement the UNDRIP.

Footnotes:

Special thanks to the Melbourne Law School Academic Research Service, and to Julian Chant, Martin Clark, Elizabeth MacPherson, and Cate Read for research assistance. Thanks again to Docip for their invaluable work in collecting the documents referenced in this chapter. All opinions and errors are mine.

1  Declaration on the Rights of Indigenous Peoples, UNGA Res 61/295, UN Doc A/RES/61/295 (13 September 2007).

2  International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976), 999 UNTS 171.

3  International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976), 993 UNTS 3.

4  American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978), 1144 UNTS 123 (ACHR or American Convention).

5  Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953), 213 UNTS 221 (European Convention on Human Rights, or ECHR).

6  African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986), 1520 UNTS 217.

7  International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969), 660 UNTS 195.

8  Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981), 1249 UNTS 13.

9  Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990), 1577 UNTS 3.

10  International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (adopted 18 December 1990, entered into force 1 July 2003), 2220 UNTS 3.

11  Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008), 2515 UNTS 147.

12  C Charters, ‘The Legitimacy of the UN Declaration on the Rights of Indigenous Peoples’ in C Charters and R Stavenhagen (eds), Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (International Work Group for Indigenous Affairs 2009) 289.

13  Article 46 functions as something like a proportionality and ‘reasonable limits’ provision, but its meaning is unclear and remains contested. For further discussion of Art 46, see Weller, Chapter 5, this volume.

14  Art 46(2).

15  Art 46(3).

16  eg Art 2 could qualify Art 33(2), so that the right of Indigenous peoples ‘to select the membership of their institutions in accordance with their own procedures’ must be exercised in a non-discriminatory manner.

17  See, eg, Art 34, which provides that Indigenous peoples have the right to promote, develop, and maintain their institutional structures, distinctive customs, spirituality, traditions, procedures, practices, and juridical systems ‘in accordance with international human rights standards’. This right was described as limited by UNDRIP Art 46(2) by the New Zealand Court of Appeal: ‘It is noteworthy that the United Nations Declaration on the Rights of Indigenous Peoples, to which New Zealand has subscribed, while recognising the rights of indigenous peoples to develop and maintain “juridical systems or customs” in Art 34, also states in Art 46(2) that nothing in the exercise of the rights under the Declaration undermines “fundamental freedoms”.’ Takamore v Clarke [2011] NZCA 587, [2012] 1 NZLR 573 at 309 per Chambers J. See also para 250 and fn 259 per Glazebrook and Wild JJ.

18  Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III).

19  See endorsement by Australia: ‘… it is a universal right that individuals have a nationality and, of course, it is a right that must be extended to every indigenous individual’: Australia, ‘Comments of the Australian Delegation on Article 5’, Doc 010a (1997) in Docip, United Nations Declaration on the Rights of Indigenous Peoples: Documents 1994–2010 (CD-ROM 2011) (on file with author).

20  See, eg, Australia, stating: ‘… as a matter of consistency in the drafting, it would be useful for this working group to consider how the use of the word “citizenship” in [Article 32] relates to use of the term “nationality” in Article 5’: Australia, ‘Statement on Behalf of the Australian Government Delegation to the Working Group on the Rights of Indigenous Peoples’, Doc 237a (1996) in Docip (n 20) (on file with author). See also Canada, ‘Articles 1, 2 & 43’ (25 October 1996), Doc 228a (1996) in Docip (n 20) (on file with author).

21  United States, ‘USDEL Comments on Section 1 of the Draft Declaration’, Doc 027a (1995) in Docip (n 20) (on file with author); and United States, ‘US Comments on Articles 5, 9, and 32’ (25 October 1996), Doc 231a (1996) in Docip (n 20) (on file with author); and Canada, ‘Articles 5, 9 & 32’ (25 October 1996), Doc 228a (1996) in Docip (n 20) (on file with author): ‘We understand this right to apply to nationality within an existing state.’ See also Canada, ‘Canada: Preliminary Comments on Part I, 95-11-23’, Doc 019a (1995) in Docip (n 20) 4 (on file with author): ‘My Government understands this to be a restatement of the right included in Article 15(1) of the [UDHR], and supports its inclusion here.’

22  African Charter (n 7) Art 4.

23  See, eg, United States, ‘US Intervention: Article 6’, Doc 148a (2001) in Docip (n 20) (on file with author).

24  Australia, ‘Comments of the Australian Delegation on Discussion Paper on Article 6’ (4 February 2002), Doc 155a (2001) in Docip (n 20) (on file with author); New Zealand, ‘WGDD7—Article 6’ (4 February 2002), Doc 159a (2001) in Docip (n 20) 2 (on file with author).

25  Andrews v Law Society of British Columbia [1989] 1 SCR 143 (Can) at 171, per McIntyre J.

26  H Charlesworth and A Durbach, ‘Equality for Indigenous Peoples in the Australian Constitution’ (2011) 15 AILR 64, 67.

27  See the Canadian cases of R v Drybones [1970] SCR 282 and R v Kapp [2008] 2 SCR 483.

28  See, eg, R v Kapp (n 28) paras 29, 56, 114.

29  UNCHR, Report of the Working Group on the Draft United Nations Declaration on the Rights of Indigenous Peoples, UN Doc E/CN.4/1997/102 (10 December 1996).

30  See the comparable Arts V, XXXV, and XXXVI in the American Declaration on the Rights of Indigenous Peoples. Article XXXV provides that: ‘Nothing in this Declaration may be interpreted so as to limit, restrict, or deny human rights in any way, or so as to authorize any action that is not in keeping with international human rights law.’ General Assembly, Organization of American States (OAS), Draft Resolution American Declaration on the Rights of Indigenous Peoples, OEA/Ser.P/AG/doc.5537/16 (8 June 2016) Arts V, XXXV, XXXVI.

31  American Declaration of the Rights and Duties of Man, OAS Res XXX adopted by the Ninth International Conference of American States (1948) reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System OEA/Ser L V/II.82 Doc 6 Rev 1, 17 (1992).

32  HRComm, General Comment 18: Non-Discrimination, UN Doc HRI/GEN/1/Rev.1 (1989) para 7.

33  Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, UNGA Res 47/135, UN Doc A/Res 47/135 (18 December 1992) Art 3(1). See also Arts 2 and 4(1).

34  ILO Convention 169: Indigenous and Tribal Peoples Convention (Convention concerning Indigenous and Tribal Peoples in Independent Countries) (Seventy-Sixth Conference Session, Geneva, 27 June 1989) Art 3.

35  General Assembly, OAS, Draft Resolution American Declaration on the Rights of Indigenous Peoples, OEA/Ser.P/AG/doc.5537/16 (8 June 2016) Art XII.

36  CERD, General Recommendation 23: Rights of Indigenous Peoples, UN Doc A/52/18 (18 August 1997) Annex V, 122, para 4(b).

37  International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969), 660 UNTS 195, Art 2(1).

38  Canada, ‘Articles 1, 2 & 43’ (25 October 1996), Doc 228a (1996) in Docip (n 20) (on file with author) on Art 2. See also US Working Group on the ‘Draft United Nations Declaration on the Rights of Indigenous Peoples’, Representative GA Smith, ‘US Comments on Articles 1, 2, 12–14, 24, 29, and 42–44’ (24 October 1996), Doc 231a (1996) in Docip (n 20) 2 (on file with author), in which the United States expressed support for Arts 1 and 2 ‘subject to satisfactory resolution of the use of the term “peoples” ’.

39  New Zealand, ‘Article 2: New Zealand Intervention’, Doc 030a (1998) in Docip (n 20) 1–2 (on file with author).

40  HRC Summary Record of the 21st Meeting, UN Doc A/HRC/1/SR.21 (29 June 2006) paras 46 (Japan) and 56 (United Kingdom); UNGA Verbatim Record, UN Doc A/61/PV.107 (13 September 2007) 21 (United Kingdom): ‘with the exception of the right to self-determination, we therefore do not accept the concept of collective human rights in international law. Of course, certain individual human rights can often be exercised collectively, in community with others. Examples would include freedom of association, freedom of religion or a collective title to property.’ Japan was of the view that collective rights ‘cannot be found in international instruments drafted and adopted by the United Nations in the past’: Japan, ‘General Statement by the Government of Japan on “the draft declaration on the rights of indigenous peoples” ’, Doc 033a (1995) in Docip (n 20) para 4 (on file with author). See also United States on Art 1, ‘USDEL Comments on Section 1 of the Draft Declaration’, Doc 027a (1995) in Docip (n 20) (on file with author).

41  Japan, ‘Statement read by the Japanese Government Delegation’ (9 December 1998), Doc 024a (1998) in Docip (n 20) (on file with author; see handwritten comments at rear of document).

42  Australia, ‘Comments of the Australian Delegation on the Discussion Paper on Article 9’ (5 February 2002), Doc 156a (2001) in Docip (n 20) (on file with author).

43  Canada, ‘Part VII: Preliminary Comments’, Doc 024a (1995) in Docip (n 20) (on file with author). See also Australia, suggesting that ‘it be made clear that this text cannot provide the basis for action inconsistent with recognised human rights and fundamental freedoms’: Australia, ‘Australian Delegation Statement: Part VII of the Declaration’, Doc 044a (1995) in Docip (n 20) (on file with author).

44  United States, ‘Preliminary Comments’ (29 November 1995), Doc 029a (1995) in Docip (n 20) (on file with author).

45  The wording of the qualification changed, however, from ‘in accordance with internationally recognized human rights standards’ in draft Article 33 to ‘international human rights standards’ in Article 34.

46  United States, ‘Comments by USA’, Doc 028a (1995) in Docip (n 20) (on file with author). See further discussion in Imai and Gunn, Chapter 8, this volume.

47  United States, ‘US Intervention: Article 9’, Doc 149a (2001) in Docip (n 20) (on file with author); Australia on Art 9, ‘Comments of the Australian Delegation on the Discussion Paper on Article 9’ (5 February 2002), Doc 156a (2001) in Docip (n 20) (on file with author).

48  Canada, ‘Articles 5, 9 & 32’ (25 October 1996), Doc 228a (1996) in Docip (n 20) (on file with author).

49  See ‘Final UNGA 2007’, UNDRIP Comparative Table (Docip 2011) in Docip (n 20) 34 (on file with author).

50  CERD, General Recommendation 24: Concerning Article 1 of the Convention, UN Doc A/54/18 (27 August 1999) Annex V,105, para 1.

51  ‘Status of Treaties: International Convention on the Elimination of All Forms of Racial Discrimination’ (UN Treaty Collection, status as at 28 June 2014), <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-2&chapter=4&lang=en> accessed 16 October 2017.

52  CERD, General Recommendation 23 (n 37).

53  See, for recent examples, the Concluding Observations of the CERD, Namibia, UN Doc CERD/C/NAM/CO/13-15 (13 May 2016) paras 15–16, 19–20, 22, 24; the Holy See, UN Doc CERD/C/VAT/CO/16-23 (11 December 2015) para 17; Mongolia, UN Doc CERD/C/MNG/CO/19-22 (11 December 2015) para 27; Colombia, UN Doc CERD/C/COL/CO/15-16 (28 August 2015) paras 8, 12, 16, 18, 20, 22, 24, 28, 32, 34, 36, 38, 40, in Spanish; Costa Rica, UN Doc CERD/C/CRI/CO/19-22 (25 September 2015) paras 14, 16, 18, 22, 24, 26, 28, 32; the Niger, UN Doc CERD/C/NER/CO/15-21 (25 September 2015) para 17; Norway, UN Doc CERD/C/NOR/CO/21-22 (25 September 2015) paras 24, 28; Suriname, UN Doc CERD/C/SUR/CO/13-15 (25 September 2015) paras 22, 24, 26, 28, 32, 34–35, 37.

54  CERD, Working Paper—Prevention of Racial Discrimination, Including Early Warning and Urgent Procedure, UN Doc A/48/18 (19 January 1994) Annex III. See, for recent examples, ‘Letter from Jose Franscisco Cali Tzay, Chairperson of the Committee on the Elimination of Racial Discrimination to Triyono Wibowo, Ambassador, Permanent Representative, Permanent Mission of Indonesia to the United Nations at Geneva’ (28 August 2015); ‘Letter from Jose Franscisco Cali Tzay, Chairperson of the Committee on the Elimination of Racial Discrimination to John Otachi Kakonge, Ambassador Extraordinary and Plenipotentiary, Permanent Representative of Kenya to the United Nations at Geneva’ (7 March 2014); ‘Letter from Alexei Avtonomov, Chairperson of the Committee on the Elimination of Racial Discrimination to Luis Enrique Chávez Basagoitia, Ambassador, Permanent Representative to the United Nations at Geneva’ (1 March 2013) (in Spanish); ‘Letter from Alexei Avtonomov, Chairperson of the Committee on the Elimination of Racial Discrimination to Betty E King, Ambassador, Permanent Representative, Permanent Mission of the United States to the United Nations at Geneva’ (1 March 2013); ‘Letter from Alexei S. Avtonomov, Chairperson of the Committee on the Elimination of Racial Discrimination to Alberto Navarro Brin, Ambassador Extraordinary and Plenipotentiary, Permanent Representative to the United Nations at Geneva’ (9 March 2012) (in Spanish); ‘Letter from Alexei Avtonomov, Chairperson of the Committee on the Elimination of Racial Discrimination to Janine Elizabeth Corle-Felson, Ambassador, Permanent Representative, Permanent Mission of Belize to the United Nations at Geneva’ (9 March 2012).

55  See Apirana Mahuika and Others v New Zealand, Comm No 547/1992, UN Doc CCPR/C/70/D/547/1993 (HRComm 1995) para 2; Lovelace v Canada, Comm No R.6/24, UN Doc Supp No 40 (A/36/49) at 166 (HRComm 1981) para 18; Lubicon Lake Band v Canada, Comm No 167/1984, UN Doc Supp No 40 (A/45/40) at 1 (HRComm 1990) para 32.2.

56  For examples from 2016, see HRComm, Concluding Observations of the Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Burkina Faso, UN Doc CCPR/C/BFA/CO/1 (17 October 2016) paras 41–42; Ecuador, UN Doc CCPR/C/ECU/CO/6 (11 August 2016) paras 35–38; Argentina, UN Doc CCPR/C/ARG/CO/5 (10 August 2016) paras 37–38; Costa Rica, UN Doc CCPR/C/CRI/CO/6 (21 April 2016) paras 9–10, 15, 41–42; Sweden, UN Doc CCPR/C/SWE/CO/7 (28 April 2016) paras 38–39; New Zealand, UN Doc CCPR/C/NZL/CO/6 (28 April 2016) paras 17–18, 21–22, 24–26, 29–30, 45–48; Rwanda, UN Doc CCPR/C/RWA/CO/4 (2 May 2016) paras 47–48; Namibia, UN Doc CCPR/C/NAM/CO/2 (22 April 2016) paras 9–10, 43–44; South Africa, UN Doc CCPR/C/ZAF/CO/1 (22 April 2016) paras 45–47.

57  Case of the Saramaka People v Suriname, IACtHR Series C No 18 (17 September 2003) para 110. See also Kuna Indigenous Peoples of Madungandi and Embera Indigenous People of Bayano and their Members v Panama, Advisory Opinion Report No 125/12, IACHR (13 November 2012) 196; Maya Indigenous Community of the Toledo District v Belize, Report No 40/04, IACtHR, OEA/Ser.L/V/II.122 Doc 5 rev 1, 727 (12 October 2004) para 193; Case of the Kaliña And Lokono Peoples v Suriname, IACtHR Series C No 309 (25 November 2015) para 142.

58  The Mayagna (Sumo) Awas Tingni Community v Nicaragua, IACtHR Series C No 79 (31 August 2001).

59  ibid para 173(2). See also Saramaka People v Suriname (n 58) para 91.

60  Kuna Indigenous Peoples v Panama (n 58) para 303, also 305; Maya Indigenous Community v Belize (n 58) paras 61, 171.

61  American Declaration of the Rights and Duties of Man, OAS Res XXX adopted by the Ninth International Conference of American States (1948) reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System OEA/Ser L V/II.82 Doc 6 Rev 1 at 17 (1992).

62  Mary and Carrie Dann v United States, IACHR, Report No 75/02, Case 11.140 (27 December 2002) para 143.

63  Some early cases emerged alongside the adoption of anti-discrimination legislation. See, eg, the Canadian Supreme Court’s decision in R v Drybones (n 28), applying the Canadian Bill of Rights, SC 1960, c 44 to strike down a provision of the Indian Act, RSC 1952, c 149, s 94(b), which made it illegal for Indians to be intoxicated outside of reserve lands.

64  See generally Mabo v Queensland (No 2) (1992) 175 CLR 1 (High Court of Australia); Western Australia v Commonwealth (1995) 183 CLR 373 (High Court of Australia); Calder v British Columbia [1973] SCR 313 (Supreme Court of Canada); Tsilhqot’in Nation v British Columbia [2014] 2 SCR 256 (Supreme Court of Canada); Te Weehi v Regional Fisheries Office (1986) 1 NZLR 682 (New Zealand High Court).

65  See, eg, Nor Nyawai and Others v Borneo Pulp Plantation Sdn Bhd and Others [2001] 2 CLJ 769 HC (ref’d) (Malaysia); Kerajaan Negeri Selangor and Others v Sagong Tasi and Others [2005] 4 CLJ 169 (Malaysia); Guerin v The Queen [1984] 2 SCR 335 (Canada); Wewaykum Indian Band v Canada [2002] 4 SCR 245; Manitoba Metis Federation v Canada (Attorney General) [2013] 1 SCR 623 (Canada); New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (HC and CA) at 664; Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301 at 304 (Court of Appeal of New Zealand); Tsilhqot’in Nation v British Columbia (n 65).

66  See, eg, the commentary in the New Zealand courts: Hayes and Another v Waitangi Tribunal and Others, CP 111/01 (Unreported, High Court Wellington, Goddard J, 10 May 2001) 17; see also Kai Tohu Tohu o Puketapu Hapu Inc v Attorney-General, CP344/97 (Unreported, High Court Wellington, Doogue J, 5 February 1999). P McHugh, ‘What a Difference a Treaty Makes—the Pathway of Aboriginal Rights Jurisprudence in New Zealand Public Law’ (2004) 15 Public L Rev 87; K McNeil, The Inherent Right of Self-Government: Emerging Directions for Legal Research (Osgoode Hall Law School 2004); on the absence of a fiduciary duty in Australian law, see K Gover, ‘The Honour of the Crowns: State–Indigenous Fiduciary Relationships and Australian Exceptionalism’ (2016) 38 Sydney L Rev 338; C Hughes, ‘Fiduciary Obligations of the Crown to Aborigines: Lessons from the United States and Canada’ (1993) 16 University New South Wales LJ 75.

67  See, eg, in New Zealand, where a ‘boiler plate’ privative clause is included in modern Treaty of Waitangi Deeds of Settlement. See Port Nicholson Block Settlement Trust v Attorney-General [2012] NZHC 3181 (NZ), para 43. In Australia, similar clauses preventing future native title claims are typically included in Indigenous Land Use Agreements as part of Recognition and Settlement Agreements concluded under Victoria’s Traditional Owner Settlement Act 2010. See Indigenous Land Use Agreement between Dja Dja Wurrung Native Title Group, Dja Dja Wurrung Clans Aboriginal Corporation and the State of Victoria (2013), cl 14 and 15; also Indigenous Land Use Agreement between Gunditj Mirring and the State of Victoria (2007), cl 23.

68  See generally M Langton, L Palmer, M Tehan, and others (eds), Honour among Nations? Treaties and Agreements with Indigenous Peoples (Melbourne University Press 2004); JR Miller, Compact, Contract, Covenant: Aboriginal Treaty-Making in Canada (University of Toronto Press 2009).

69  Constitution Act, 1982, being Sch B to the Canada Act 1982 (UK), 1982, c 11.

70  Supreme Court of Canada jurisprudence emphasizes the specificity of s 35 Aboriginal rights relative to Charter rights. See discussions in R v Kapp (n 28) and R v Van der Peet [1996] 2 SCR 507, para 19: ‘Aboriginal rights cannot, however, be defined on the basis of the philosophical precepts of the liberal enlightenment. Although equal in importance and significance to the rights enshrined in the Charter, aboriginal rights must be viewed differently from Charter rights because they are rights held only by aboriginal members of Canadian society.’

71  New Zealand Bill of Rights Act 1990 (NZBORA) s 20, Human Rights Act 1993 (HRA) s 21(1)(f). See F Adcock, ‘Māori and the Bill of Rights Act: A Case of Missed Opportunities?’ (2013) 11 NZJPL 183, 199 and C Charters, ‘Māori, Beware the Bill of Rights Act’ (2003) NZLJ 401.

72  CERD, Sixty-Sixth Session, 17 February–11 March 2005, Decision 1 (66): New Zealand, UN Doc CERD/C/DEC/NZL/1 (27 April 2005) para 6.

73  Likewise, the New Zealand Attorney-General observed in her pre-enactment advice on the Foreshore and Seabed bill that there was ‘a significant argument for a prima facie breach of [the non-discrimination provision of the NZBORA] section 19’, concluding that any limit could nonetheless be justified as a reasonable limit on that right in accordance with the NZBORA’s s 5. Attorney-General, Foreshore and Seabed Bill (6 May 2004) paras 56, 79, 103.

74  Gerhardy v Brown (1985) 159 CLR 70 (High Court of Australia); Mabo v Queensland (1988) 166 CLR 186 (High Court of Australia); Mabo v Queensland (No 2) (n 65); Western Australia v Commonwealth (1995) 183 CLR 373 (High Court of Australia); Western Australia v Ward (2002) 213 CLR 1 (High Court of Australia).

75  Commonwealth of Australia Constitution Act (1900) s xxvi.

76  Kartinyeri v Commonwealth [1998] 195 CLR 337 (High Court of Australia).

77  RJ Miller, J Ruru, L Behrendt, and T Lindberg, Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies (Oxford University Press 2010) 190.

78  Western Australia v Commonwealth (n 75).

79  Maloney v The Queen (2013) 252 CLR 168 (High Court of Australia).

80  Mabo v Queensland (No 2) (n 65).

81  Mabo v Queensland (n 75).

82  Mabo v Queensland (No 2) (n 65) 42 per Brennan J.

83  ibid 112 [xiii]; Western Australia v Ward (n 75) paras 122–24 (High Court of Australia). The first case upholding the requirement of compensation for extinguished native title rights was decided in 2016: Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900.

84  Western Australia v Commonwealth (n 75) 418, 437, 451, 483–84 (Mason CJ and Brennan, Deane, Toohey, Gaudron, and McHugh JJ); Western Australia v Ward (n 75) paras 122–24.

85  Alexor Ltd and Another v Richtersveld Community and Others (CCT19/03) 2004 (5) SA 460 (Constitutional Court of South Africa) paras 68–69, 82.

86  ibid para 95.

87  ibid para 96.

88  This approach is similar to that developed by the Canadian Supreme Court in some discrimination cases arising under the Charter of Human Rights and Freedoms, in which the Charter’s non-discrimination clause was triggered only by differentiation that impacted on the applicant’s dignity, assessed by reference to, inter alia, the ‘pre-existing disadvantage, if any’ of the person or group challenging the measure. Law v Canada (Minister of Employment and Immigration) [1999] 1 SCR 497, paras 62–75 (Supreme Court of Canada). Courts in Australia and New Zealand, on the other hand, have tended to read the non-discrimination principle very widely at the outset, and to turn then to the possibility that the act is a special measure, and so an exception to discrimination (Australia, see Maloney v The Queen (n 80) or else a ‘reasonable limitation’ on the rights of the affected party (New Zealand, Atkinson v Minister of Social Welfare [2012] NZCA 1 (New Zealand Court of Appeal)).

89  ‘Draft 1994’, UNDRIP Comparative Table (n 50) 17, 18.

90  Canada on Arts 19 and 20, ‘Articles 19, 20, 22 & 23’ (28 October 1996), Doc 228a (1996) in Docip (n 20) (on file with author).

91  ibid. See also HRComm, General Comment 18 (n 33) 26, para 3.

92  Canada on Arts 19 and 20, ‘Articles 19, 20, 22 & 23’ (28 October 1996), Doc 228a (1996) in Docip (n 20) (on file with author).

93  UNCHR, Report of the Working Group Established in Accordance with Commission on Human Rights Res 1995/32, UN Doc E/CN.4/1997/102 (10 December 1996) para 209 (France); Norwegian Working Group on the Draft Declaration on the Rights of Indigenous Peoples, ‘Statement by Norway on Articles 19, 20, 22 and 23’, Doc 350a (1996) in Docip (n 20) (on file with author; see handwritten comments).

94  Joint Statement by Australia, New Zealand, and the United States of America, ‘On the Chair’s Text on the Declaration on the Rights of Indigenous Peoples’ (Human Rights Council, 27 June 2006) in Docip (n 20) 2 (on file with author). Note that this reading of Arts 19 and 20 was rejected by the International Law Association, Committee on the Rights of Indigenous Peoples: International Law Association, ‘Final Report of Sofia Conference—Rights of Indigenous Peoples’ (Sofia, ILA 2012) 4.

95  CERD, General Recommendation 32: The Meaning and Scope of Special Measures in the International Convention on the Elimination of All Forms Racial Discrimination, UN Doc CERD/C/GC/32 (24 September 2009) para 8.

96  HRComm, General Comment 18: Non-Discrimination (Thirty-Seventh Session, 1989), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRC/GEN/1/Rev.1 (10 November 1989) 26.

97  CERD, General Recommendation 14: Definition of Racial Discrimination, UN Doc A/48/18 (19 January 1994) 114, para 2 (emphasis added).

98  ibid. Similar language has been used by the ECHR to define discrimination as the differential treatment of similarly placed persons for which there is no ‘objective and reasonable justification’, meaning that the measure has a legitimate aim and there is ‘a reasonable relationship of proportionality between the means employed and the aim sought to be realized’: Belgian Linguistics case (No 2) (App No 1474/62) (1968) 1 EHRR 252, para 10.

99  CERD, General Recommendation 14 (n 98) 114, para 2. See also Sefic v Denmark, CERD UN Doc CERD/C/66/D/32/2003 (7 March 2005) para 7.2 (requirement to speak Danish to receive car insurance not discriminatory in terms of the ICERD).

100  HRComm, General Comment 18 (n 33) para 13.

101  ibid para 10.

102  Lindgren v Sweden, Comm 298/1988 and 299/1988, UN Doc A/46/40, 253 (HRComm 1990) para 10.4.

103  Schmitz-de-Jong v The Netherlands, Comm 855/1999, UN Doc A/56/40 (HRComm 2001) vol II, 165, para 7.2.

104  Oulajin and Kaiss v the Netherlands, Comms 406/1990 and 426/1990, UN Docs CCPR/C/D/406/1990 and 426/1990 (HRComm 1990) paras 3.2, 7.4.

105  Gillot v France, UN Doc CCPR/C/75/D/932/2000 (15 July 2002).

106  ibid para 3.5, note 5.

107  ibid para 3.5, note 6.

108  ibid para 13.10. The HRComm further noted that ‘the right to vote is not an absolute right and that restrictions may be imposed on it provided they are not discriminatory or unreasonable’ (para 12.2).

109  Morton v Mancari, 417 US 535, 553.

110  Carr v Boree Aboriginal Corp [2003] FMCA 408, para 9 (Aus); Amaltal Fishing Co Ltd v Nelson Polytechnic Complaints Review Tribunal (1996) 2 HRNZ 225 (NZ).

111  Gerhardy v Brown (n 75); R v Kapp (n 28).

112  CESCR, General Comment 20: Non-Discrimination in Economic, Social and Cultural Rights (Art. 2, para. 2), UN Doc E/C.12/GC/20 (10 June 2009) para 13.

113  Belgian Linguistics (No 2) (n 99), 24, 27, 31, 82–83, 85–86, 103.

114  Saramaka People v Suriname (n 58) para 103. See also the views of the Inter-American Commission in Mary and Carrie Dann v United States (n 63) para 143: the Convention, ‘while not prohibiting all distinctions in treatment in the enjoyment of protected rights and freedoms, requires at base that any permissible distinctions be based upon objective and reasonable justification, that they further a legitimate objective, regard being had to the principles which normally prevail in democratic societies, and that the means are reasonable and proportionate to the end sought’. See also Maya Indigenous Community v Belize (n 58) para 166.

115  Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, Comm 276/2003, African Commission on Human and Peoples’ Rights (4 February 2010) para 196.

116  In Bropho v Western Australia (2008) 169 FCR 59, para 83 and Aurukun Shire Council v Chief Executive Offıcer, Offıce of Liquor, Gaming and Racing in the Department of Treasury (2010) 265 ALR 536, 33, para 64 per McMurdo P, 81, para 215 per Keane JA, and 95, para 270 per Philippides J, where infringements of Indigenous property rights where held to further the legitimate public interest of protecting other members of the community from alcohol-related violence.

117  Maloney v The Queen (n 80) p 202, 68 (Hayne J).

118  Morton v Mancari (n 110) 551–52.

119  ibid 552.

120  Carr v Boree Aboriginal Corp [2003] FMCA 408, para 9: I am satisfied that the first respondent through its various servants and agents did discriminate against the applicant in her employment and did dismiss her for reasons which were to do with her race or non-Aboriginality.’

121  Gerhardy v Brown (n 75).

122  Mabo v Queensland (n 75).

123  R v Kapp (n 28).

124  Amaltal Fishing v Nelson Polytechnic (n 111) 35.

125  Corbiere v Canada (Minister of Indian and Northern Affairs) [1999] 2 SCR 203, para 52.

126  R v Agawa (1988) 28 OAC 201, para 11; Campbell v British Columbia (Attorney General) [2000] 79 BCLR (3d) 122, para 156. Also R v Kapp (n 28) para 64.

127  Section 15(1): ‘Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.’

128  R v Kapp (n 28).

129  Morton v Mancari (n 110) 553.

130  CERD, General Recommendation 32 (n 96) para 11.

131  For recent examples, see CERD, Consideration of Reports Submitted by State Parties under Article 9 of the Convention, Concluding Observations: Namibia, UN Doc CERD/C/NAM/CO/13-15 (13 May 2016) para 22; Guatemala, UN Doc CERD/C/GTM/CO/14-15 (12 June 2015) paras 16, 20; the Niger, UN Doc CERD/C/NER/CO/15-21 (25 September 2015) paras 16–17; Suriname, UN Doc CERD/C/SUR/CO/13-15 (25 September 2015) paras 22, 32, 35.

132  See, eg, Concluding Observations—Colombia, UN Doc CERD/C/COL/CO/14 (28 August 2009) para 10.

133  See HRComm, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, Concluding Observations: Costa Rica, UN Doc CCPR/C/CRI/CO/6 (21 April 2016) para 16; Colombia, UN Doc CCPR/C/COL/CO/6 (4 August 2010) para 25; El Salvador, UN Doc CCPR/C/SLV/CO/6 (18 November 2010) para 18.

134  CERD, General Recommendation 32 (n 96) para 20. See also R v Kapp (n 28) para 16. cf Maloney v The Queen (n 80).

135  ibid para 7.

136  ibid para 16.

137  ibid para 26 (referring to ICERD Art 1, para 4).

138  Canada, ‘Articles 1, 2 & 43’ (25 October 1996), Doc 228a (1996) in Docip (n 20) (on file with author).

139  UNDRIP (n 2) Art 21(2).

140  See, eg, Bruch v Commonwealth [2002] FMCA 29, para 50 (Australian Federal Magistrates Court), providing that rental assistance offered to Indigenous tertiary students was a special measure in the terms of RDA s 8 ‘to ensure that the rates of participation of indigenous Australians in education is raised to the same level as that for non indigenous Australians and is designed to promote equity and educational opportunity and improve educational outcomes for indigenous Australians’.

141  eg R v Kapp (n 28) para 59.

142  CERD, General Recommendation 32 (n 96) para 15.

143  ibid.

144  ibid para 26.

145  Ángela Poma Poma v Peru, Comm No 1457/2006, UN Doc CCPR/C/95/D/1457/2006 (HRComm 2009) para 7.2.

146  International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976), 999 UNTS 171 (ICCPR) Art 27; HRComm, General Comment 23: Article 27: Rights of Minorities, UN Doc CCPR/C/21/Rev.1/Add.5 (8 April 1994) para 3.2.

147  CERD, General Recommendation 32 (n 96) para 15. See also CESCR, General Comment 20 (n 113) para 9: ‘Some such measures to achieve non-discrimination may, however, need to be of a permanent nature, such as interpretation services for linguistic minorities and persons with sensory impairments in health-care facilities.’

148  United States on Art 1, ‘USDEL Comments on Section 1 of the Draft Declaration’, Doc 027a (1995) in Docip (n 20) (on file with author).

149  United States, ‘USA Preliminary Comments’ (27 November 1995), Doc 029a (1995) in Docip (n 20) (on file with author); Canada on Art 2, ‘Articles 1, 2 & 43’ (25 October 1996), Doc 228a (1996) in Docip (n 20) (on file with author), including Canada’s suggestion that the ‘special measures’ provision of the Declaration on Minority Rights could be used to augment draft Art 2.

150  A Willemsen-Diaz, ‘How Indigenous Peoples’ Rights Reached the UN’ in Charters and Stavenhagen (n 13) 30; see also 22.

151  HRComm, General Comment 23 (n 147) para 2.

152  ibid para 4.

153  Lovelace v Canada (n 56) para 16. See also Kitok v Sweden, Comm No 197/1985, UN Doc CCPR/C/33/D/197/1985 (HRComm 1988) para 9.8; Mahuika v New Zealand (n 56) para 9.6.

154  HRComm, General Comment 23 (n 147) para 6.2.

155  ibid.

156  ibid.

157  Mary and Carrie Dann v United States (n 63) para 125. Almost identical wording was used in Maya Indigenous Community v Belize (n 58) para 95.

158  Saramaka People v Suriname (n 58) para 85. See also para 91.

159  See, eg, Constitution of Malaysia Art 8(5)(c), ‘which sanctions positive discrimination in favour of the aborigines’: Selangor v Sagong Tasi (n 66) para 44.

160  Native Title Act 1993 (Cth) (Australia) s 7(1). See Western Australia v Commonwealth (n 75) 483–84 (Mason CJ and Brennan, Deane, Toohey, Gaudron, and McHugh JJ): ‘… if there were any discrepancy in the operation of the two Acts, the Native Title Act can be regarded either as a special measure under s 8 of the Racial Discrimination Act … or as a law which, though it makes racial distinctions, is not racially discriminatory so as to offend the [RDA] or the [ICERD]’.

161  Maloney v The Queen (n 80) 86, para 24, per French CJ. Several judges thought that a lack of consultation might, in some circumstances, be a factor relevant to the question of whether a measure could reasonably be deemed a ‘special measure’, but did not think this limitation was applicable on the facts.

162  Gerhardy v Brown (n 75) 135, per Brennan J.

163  R v Kapp (n 28) para 29.

164  Compare this approach with Australian jurisprudence, especially Maloney v The Queen (n 80). R v Kapp (n 28) establishes that differentiation satisfying s 15(2) need not be scrutinized to determine if it is discriminatory (para 40).

165  R v Kapp (n 28) para 16.

166  ibid para 33.

167  ibid para 55.

168  ibid para 59.

169  Ibid.

170  R v Kapp (n 28) para 37.

171  See CERD, General Recommendation 32 (n 96) para 20.

172  New Zealand Bill of Rights Act 1990 (NZ) s 19(2).

173  Human Rights Act 1993 (NZ) s 73.

174  CERD, Concluding Observations of the Committee on the Elimination of Racial Discrimination, Consideration of Reports Submitted by States Parties under Article 9 of the Convention: New Zealand, UN Doc CERD/C/NZL/CO/17 (15 August 2007) para 15.

175  Amaltal Fishing v Nelson Polytechnic (n 111).

176  ibid para 35.

177  ibid para 246. cf Bruch v Commonwealth (n 141) para 50 (Australian Federal Magistrates Court).

178  ibid.

179  UNDRIP Art 2.