Megan Davis

Identity, Power, and Rights: The State, International Institutions, and Indigenous Peoples in Canada

This chapter is a study of indigenous legal activism through domestic and international mechanisms. It examines the evolving nature of international indigenous advocacy through United Nations (UN) mechanisms and international financial institutions (IFIs). Within states, international indigenous legal activism has influenced the legal and political strategy of indigenous peoples. It is incontrovertible that indigenous peoples’ employment of the discourse of international institutions and agreements has resulted in improved human rights outcomes for indigenous peoples. These outcomes derive from both the symbolic and the binding nature of international law which compels states to act in ways that do not violate indigenous peoples’ rights and culture. This indigenous legal activism has provided indigenous peoples with the space to question, challenge, and sometimes disrupt the complex interactions between multinational corporations (MNCs), international trade institutions and the state. This chapter illustrates the complex interactions between MNC-Indigenous Peoples (IP) ties, IP-state relations, and IP-non-governmental organizations (NGO) links by providing a case study of indigenous legal activism at the World Trade Organization (WTO).

Koowarta: constitutional landmark, transition point or missed opportunity?

Beyond the immediate significance to Wik-Mungkan people and Aboriginal peoples more generally, Koowarta v Bjelke-Petersen was an important constitutional case for several reasons. First, it confirmed that the Australian parliament could enact national human rights laws binding on the states. Second, the decision showed how close the High Court of Australia in the early 1980s came to revisiting the propulsive centralism of the Engineers decision, a central tenet of Australian constitutional doctrine, but also exposed the elusiveness at the heart of the pro-federalist interpretation of the external affairs power, thereby setting the stage for the affirmation of central government power a year later in the Tasmanian Dam case. Third, the court failed to persuasively address credible arguments that the races power in s 51(xxvi) of the Constitution could support a national law prohibiting racial discrimination. The Koowarta decision was, in these three respects, simultaneously a landmark, a turning point and a missed opportunity. In a contemporary sense, when alterations to the Australian Constitution in respect of Aboriginal and Torres Strait Islander peoples are under active consideration, Koowarta underlines the importance of choosing amending words carefully – history suggests the court may not, of its own volition, bring a non-discriminatory mindset to the question of constitutional interpretation.

‘A Home at the United Nations’: Indigenous Peoples and International Advocacy

Over the past three decades, Indigenous peoples have successfully forged a presence within the United Nations (UN) and international law as a result of their organised international advocacy, raising awareness of the distinct nature of Indigenous peoples’ rights and the unique human rights challenges that contemporary Indigenous communities face (Anaya, 2004: 56–58). In 2001, Indigenous peoples celebrated the first session of the Permanent Forum on Indigenous Issues (Permanent Forum/PFII) — a forum established for permanent coordination of Indigenous peoples’ issues within the UN system. When the then Secretary General Kofi Annan opened the UN Permanent Forum, he declared to the Indigenous peoples present: ‘you now have a home at the United Nations’. While many Indigenous representatives delighted in this effusive welcome, many have reserved judgment upon the Permanent Forum and questioned the effectiveness of entrenching indigenous diplomacy within the UN’s bureaucracy (Havemann, 2001: 24–25; Stewart-Harawira, 2005: 18).

Treaty, yeah?: the utility of a treaty to advancing reconciliation in Australia.

Different nations have accommodated Indigenous peoples in various ways. Generally treaties were enacted, as occurred in New Zealand, the United States and Canada. Indeed, states like Canada have been engaging in post colonial treaty-making for those aboriginal nations that did not enter into a treaty at first contact — British Columbia and the Nisga’a Final Agreement are examples of this. Australia remains the only common law country that has not entered into a treaty agreement with its Indigenous peoples. In fact, Australia has not engaged in any formal state-building exercise of accommodating and recognising Indigenous peoples.1 The 1967 referendum can hardly be regarded as a triumphant exercise in state-building particularly given the continued presence of s 51(xxvi) in the Constitution. Even the drafting of a sentence about Aboriginal peoples’ prior custodianship of Australia in the proposed revised preamble to the Constitution in the Republic Referendum of 1999 was controversial.