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Public Interest Law Journal of New Zealand |
Last Updated: 21 October 2014
The United Nations Declaration on the Rights of Indigenous Peoples: A Step Forward or Two Back?
Laura MacKay[*]
Mixed reactions abound when it comes to the Universal Declaration on the Rights of Indigenous Peoples and its implementation in New Zealand and Australia. It is a multi-faceted document whose apparent legal frailty conceals layers of political, moral and judicial force. Although the courts of New Zealand and Australia have not whole-heartedly embraced the Declaration as a legal tool, and the political motivations of the national governments for its eventual implementation can be viewed as self-interested, the moral force of the Declaration should not be underestimated. Its only recent accession in Australia and New Zealand indicates that we should not immediately dismiss it. Instead, we should give it time to absorb into national cultures before then making worthwhile change.
The United Nations Declaration on the Rights of Indigenous Peoples has been described as “perhaps the most important international instrument ever for Maori people,”[1] and a “watershed moment”[2] in Australian race relations. It has also been criticised as “fanfare and fine words”[3] that will only be ignored. Such criticism has legitimate basis in both Australia and New Zealand due to their delayed affirmation of the Declaration and their strident criticism when it was officially adopted in the United Nations General Assembly.
The genesis of such criticism is the Declaration’s legal standing as an aspirational document with no binding force. The political reaction to the Declaration in each country indicates that this is the decisive factor determining the status of the Declaration. Compounded by a mixed response from the courts, it seems the Declaration may be relegated to the back-pile of international treaties that Australia and New Zealand feel they have every right to ignore. However, taking this view implies a lack of will to move beyond a superficial first impression. The Declaration’s potential to crystallise into international customary law, plus a momentum that it is beginning to generate both within the courts, and beyond, means that a simple dismissal as an aspirational, non-binding document cannot be sustained.
The Declaration was adopted by the United Nations General Assembly on the 13th of September 2007, following more than 20 years of negotiations.[4] These negotiations had been conducted under a heavy sense of distrust from both states and indigenous peoples.[5]
143 members voted in favour, 4 against (Australia, New Zealand, Canada and the United States), and there were 11 abstentions. Australia adopted the Declaration in April 2009, and a year later in April 2010 New Zealand followed suit.
The Declaration is comprised of 23 preambular paragraphs, which set the stage for the following 46 articles. The most important of the articles cover:
According to the Declaration, the most important goal is to encourage “harmonious and cooperative relations between states and indigenous peoples based on principles of justice, democracy, respect for human rights, non-discrimination and good faith.”[6]
A declaration is commonly understood as a non-binding international legal instrument, which states have no legal obligation to follow. Rather, it provides a “set of internationally endorsed objective standards to guide the relationship with Indigenous peoples, and to promote actions that respect and protect Indigenous cultures.”[7] New Zealand and Australia must amend their domestic law to incorporate the contents of a declaration, in order for a declaration to be legally binding.[8]
The non-binding nature of the Declaration was particularly emphasised by many states, including Australia and New Zealand, during its adoption in the UN General Assembly.[9] New Zealand and Australia stressed that it was “an aspirational declaration with political and moral force but no legal force” and “is not intended itself to be legally binding or reflective of international law.”[10]
In a speech made on behalf of Australia, New Zealand and the United States to the General Assembly in 2006, the Declaration was generally criticised for failing to be ‘’clear, transparent and capable of implementation.’’[11] It was also argued to conflict with the universality of human rights. Additionally, more specific objections were raised. Article 3, the right to self-determination, potentially conferred a right to secede, threatening the ‘’political unity, territorial integrity and stability’’[12] of states. Article 19, which prescribes consultation, could allow indigenous peoples a veto over domestic law. The provision for redress, under Article 28, was also described as ‘’unworkable and contradictory.’’[13]
Dr. Pita Sharples, the Minister for Foreign Affairs, finally accepted the Declaration on behalf of New Zealand in 2010. However, there was a catch; the Declaration would only be affirmed so far as it was consistent with New Zealand’s domestic law. Dr. Sharples made this clear when he stated ‘’those existing frameworks, while they will continue to evolve in accordance with New Zealand’s domestic circumstances, define the bounds of New Zealand’s engagement with the aspirational elements of the Declaration.’’[14] In particular, New Zealand was to maintain its current redress system, based on Treaty of Waitangi claims, as well as existing provisions for indigenous involvement in decision-making and the regulations surrounding ownership of land and resources. In effect, the Declaration was to have no impact on the law of New Zealand.
This was reinforced by Prime Minister John Key’s response to Opposition leader Phil Goff, who raised the issue of why Parliament affirmed the Declaration if it had no plans to implement it. Key stated, “it is not a treaty, it is not a covenant, and one does not actually sign up to it. It is an expression of aspiration; it will have no impact on New Zealand law and no impact on the constitutional framework.[15]
Why then did New Zealand bother to sign the Declaration, having no intent to comply with any of its standards? It seems inconsistent at best, and highly disingenuous at worst. One practical incentive for the National Government could have been domestic support. The Maori population is estimated at 682 200,[16] which is approximately 15.3% of New Zealand’s total population. By publically affirming the Declaration, with statements such as “my objective is to build better relationships between Maori and the Crown, and I believe that supporting the declaration is a small but significant step in that direction,’’ Key may have been angling for an increased voter base. Furthermore, with a wafer-thin majority in the 2008 election, the National Party is dependent on the Maori Party for a coalition Government. Dr. Sharples stated that his party had put pressure on the support arrangement in order to achieve acceptance of the Declaration,[17] and as some New Zealand commentators have pointed out, affirming the Declaration gives the Maori Party a tangible result in return for their support. Meanwhile, its non-binding and caveated nature means the government is making almost no political compromise.[18]
Internationally, the New Zealand Government may have been looking to preserve its reputation as a leader in human rights. This can be seen in John Key’s statement: [19]
That really is the point about New Zealand affirming the United Nations Declaration on the Rights of Indigenous Peoples... I cannot see why New Zealand would not want to be there affirming on the world stage that we care about the rights of indigenous people.
International concern was certainly raised about New Zealand’s lack of participation in the Declaration, visible in the Universal Periodic Review of New Zealand, where support for the Declaration was strongly recommended
Claire Charters argues that New Zealand’s objections to the Declaration were nothing more than a ‘’self-interested attempt to make it consistent with New Zealand domestic law.’’[20] However, she argues that because of its size, New Zealand cannot be as isolated ideologically as it is geographically. It must uphold a reputation for human rights that is consistent with the prevailing liberal world order, a pressure that Key may have felt.
It could be contended that the Declaration influenced the replacement of the decidedly discriminatory Foreshore and Seabed Act 2004 with the Marine and Coastal Area (Takutai Moana) Act 2011. However, this could simply be due to the same pressures that led to the affirmation, not as an effect of the Declaration itself.
Therefore, was the affirmation of the Declaration in New Zealand a purely political move with no intention to improve indigenous rights? It seems it may have simply been an attempt to placate domestic and international pressure, and to ensure New Zealand did not fall behind countries with poorer human rights records that had affirmed the Declaration.[21]
The Australian government in 2007, under Prime Minister John Howard, expressed particular dissatisfaction with the elements of self-determination in the Declaration, believing it could impact upon Australia’s territorial and political integrity, and their democratic representation system.[22] They were also of the belief that the Declaration would elevate Aboriginal customary law above Australian law.[23]
However, as in New Zealand, a change of government heralded a change in attitude. Under Kevin Rudd, Australia formally affirmed the Declaration in 2009, with Indigenous Affairs Minister Jenny Macklin stating the affirmation was “in the spirit of rethinking the relationship between indigenous and non-indigenous Australians and building trust.”[24]
Australia, unlike New Zealand, lacked the immediate domestic political pressure that the Maori Party was able to place on the National Government. However, there was some evidence of a grassroots movement that made its presence known in the fight to affirm the Declaration. On May 16, 2008, over 100 organisations sent a letter, officiated by the Indigenous Law Centre and Human Rights Centre, to the Rudd Government, urging them to affirm the Declaration, which indicates the presence of domestic influence.
The Declaration’s acceptance in 2009 was met with support by some and scepticism by others. Aboriginal and Torres Strait Islander Social Justice Commissioner Tom Calma described the Declaration as a “watershed moment for Australian Race Relations,”[25] while Australian of the Year, Professor Mick Dodson, also a senior Aboriginal leader, stated that the government has “taken another significant step towards true reconciliation.”[26]
Criticism was also prevalent, both that the affirmation was going too far and, alternatively, that it was not enough to remedy existing problems. The shadow Attorney-General articulated concerns that the Declaration would crystallise into international customary law and “create a jurisprudence that it fundamentally out of step with an ongoing legal dialogue within Australia.”[27]
Meanwhile, anti-interventionists accused the government of “absolute hypocrisy.”[28] In 2007, the Australian Government had introduced the Northern Territory Emergency Response. It aimed to protect child welfare in Aboriginal communities - but did so by imposing highly prohibitive measures. These included community bans on alcohol and pornography, external management of income, linking welfare benefits to school attendance and compulsory 5-year leases, with the ostensible aim of redevelopment.[29] The Emergency Response specified that acts done for the purposes of the Act were ‘special measures’ and therefore effectively suspended the Racial Discrimination Act.[30] This led some to believe that the affirmation of the Declaration was nothing more than “a tokenistic gesture”[31] while such measures remained in place. This view was given international credibility by the Statement of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, in which James Anaya commented that the Emergency Response “overtly discriminate[s] against Aboriginal peoples, infringe[s] their right of self-determination and stigmatise[s] already stigmatized communities.”[32] He also stated the Emergency Response is incompatible with Australia’s obligations under the Declaration.
Some commentators such as Megan Davies, Director of the Indigenous Law Centre at the University of New South Wales, have also proposed that the Declaration was signed for reasons reflecting those of New Zealand; to ensure Australia was conforming internationally. Davies suggested that Australia was “getting their human rights house in order,”[33] and the affirmation of the Declaration was simply part of their aim for a temporary seat on the United Nations Security Council.
However, even if Australia’s affirmation was a buckling to international pressure, unlike New Zealand, the Australian Government has shown some signs of compliance. The Rudd Government stated that it would respond to the Declaration by establishing a national representative body in order to afford Aboriginal peoples a say in federal government affairs,[34] and subsequently the National Congress of Australia’s First Peoples was established in April 2010.[35] It is independent of the Government and is an advocate for improved indigenous rights in economic, political and social areas, as well maintaining and creating relationships with the government and other industries and bodies.[36]
The Australian Government also replaced the Emergency Response with the Stronger Futures Legislation in 2012, which under s 99A lifts the suspension of the Racial Discrimination Act. However, the Stronger Futures Legislation has been criticised for changing very little of the Emergency Response, as it maintains the key provisions, and was enacted without consultation of Aboriginal peoples.[37] Consequentially, it is still highly contentious whether it is complies with Australia’s obligations under the Declaration.
Therefore, in both Australia and New Zealand, doubt can be cast on the political motivations underlying the affirmation of the Declaration. Whether the governments affirmed the Declaration as a matter of political expediency, due to domestic and international pressure, or because they are genuinely committed to improving indigenous rights can be argued either way. However, in both countries, and especially New Zealand, it will remain to be seen whether the governments will begin to take the Declaration as more than an aspirational standard they have no obligation to adhere to. The beginnings of this are evident in Australia, in the establishment of the National Congress and the repeal of the Emergency Response. However the argument can be made that perhaps this is because Australia still trails behind New Zealand in its treatment of indigenous peoples. New Zealand, when it affirmed the Declaration did not have an intervention policy in place, and had already established methods through which Maori could make their voices heard. This includes institutions such as the Maori seats, and the Waitangi Tribunal. Thus, although Australia did not caveat its acceptance of the Declaration, maybe this was because it had no existing framework to protect.
Beyond the political response of the legislatures and the governments, the courts play a hugely important role in the implementation of international law, whether it is legally binding or not. Any denial of this fails to take into account the wide range of resources that the judiciary engages with in their reasoning process. The reaction of the courts in both countries has neither been a complete rejection of the Declaration as non-binding, nor a whole-hearted embrace. However, it must not be forgotten that the Declaration has only recently, in both nations, become a tool in judicial reasoning, as the prior rejection of the Declaration by both Australia and New Zealand placed a limit on its possible use.
In 2012, when the Declaration first began to appear in legal argument, mixed results emerged from the New Zealand courts. In Greenpeace of New Zealand Inc v Minister of Energy and Resources[38] the High Court rejected that the Declaration could have any impact on a Minister when performing his statutory obligations, as it is not legally binding.[39] However, in Taueki v Horowhenua District Council[40] the Maori Land Court utilised the Declarations’ emphasis on self-determination as a valid justification for finding in favour of the Maori applicant. Considering self-determination was one element of the Declaration that the New Zealand government made clear it would not implement, this was a bold move by Harvey J.
The Court of Appeal made a positive start in judicial utilisation of the Declaration, concluding in Takamore v Clarke[41] that a more modern approach is needed in regards to customary law, and that the common law should be developed consistently with the “importance of recognising the collective nature of indigenous culture (as recognised in particular by the United Nations Declaration on the Rights of Indigenous Peoples).”[42] However, in the appeal to the Supreme Court, the Declaration was barely mentioned, apart from a brief reference by Elias CJ, who made it clear a lack of respect for the Declaration did not contribute to her conclusion.[43]
The Supreme Court’s position is clarified in New Zealand Maori Council v Attorney-General[44] in 2013. They indicate that the Declaration is to be judicially interpreted with regards to the caveats the New Zealand government placed on it. Therefore, they did not see it as adding “significantly to the principles of the Treaty of Waitangi.”[45] However, they did leave the door slightly ajar on this position, and also accepted that the Declaration supported a wide reading of the principles.[46]
The clearest form of support for the Declaration comes in the form of Waitangi Tribunal reports. The Ko Aotearoa Tēnei Report from 2011 states that the provisions of the Declaration “provide valuable guidance on those issues [collective and individual rights in terms of culture, identity, education, health and so forth] and reflect in many ways the spirit of the principles of the Treaty of Waitangi.”[47]
In 2012, the Waitangi Tribunal also referred to the Declaration in its Stage 1 Report on the National Freshwater and Geothermal Resources Claim, where they used specific articles to support their reasoning. They also affirmed the Declaration as a “base standard,”[48] a resounding statement, as it moves the Declaration from an ‘aspirational’ benchmark, to a standard which would be an international embarrassment not to achieve.
As in New Zealand, the judicial reaction in Australia has not been consistent in demonstrating a defined attitude towards the Declaration. Cheedy v Western Australia[49] in 2010 acknowledged that the Declaration is a legitimate influence on the development of common law, however only when a statute is ambiguous.
Nevertheless, in Thompson v Dean[50], a year later, the Declaration was used as a substantial support mechanism for the Family Court’s decision to leave Aboriginal children with their mother. Further, in a similar situation in Knightley v Brandon,[51] just this year, the court ensured its decision was consistent with the Declaration, stating the rights the Declaration enshrines “may not be enacted within the Family Laws Act... [but are] relevant to interpretation and application of the Family Laws Act.”[52] Therefore the court was going far beyond the ambiguity limitation laid down in Cheedy. Finally, in R v Maloney, decided in 2012, the court blankly stated that the Declaration did not affect any argument as “this country’s accession to the Declaration [does not] give rise to enforceable rights or obligations.”
Therefore, courts in neither country give clear indication of what they will make of the Declaration. This is entirely understandable, given its only recent affirmation in both nations, and especially in New Zealand, where the caveated nature of its acceptance makes it difficult to clarify what in the Declaration is legally applicable.
What is most important to recognise however, is that the courts have demonstrated that they are willing to make use of the Declaration in their judgments. Although this was predominantly in the opinion of the Waitangi Tribunal in New Zealand and the Family Court in Australia, it means that a basis for utilising the Declaration has been formed.
Despite the widespread assertions that the Declaration has no formal power in domestic and international law, its normative power in creating standards of behaviour amongst states is not to be overlooked.[53]
Significantly, Claire Charters, while agreeing that the Declaration is non-binding on states in international law, believes its lack of legal force is compensated for by a moral persuasion.[54] It seems it was partially this moral persuasion, internationally and domestically, that influenced New Zealand and Australia to affirm the Declaration in the first place and thus should not be underestimated in its potential to induce further compliance with the Declaration’s ‘aspirational’ standards.
The Declaration is also significant to the domestic law of signatories, mainly because the treaty representing the rights of indigenous peoples, the ILO Convention 169 Concerning Indigenous and Tribal Peoples, is not widely ratified. The Declaration is more widely applicable, and also provides a broader recognition of the rights on indigenous peoples.[55]
This normative behaviour can become binding if the Declaration reaches the point of ‘international customary law.’ International customary law is defined under Article 38(1)(b) of The International Court of Justice Statute as ‘’evidence of a general practice accepted as law.’’[56] If the Declaration is seen as international customary law, then the obligations it promulgates are binding on countries even if they are not incorporated into domestic law.[57] Although there is evidence the Declaration may eventually reach this status, given the emphasis put on its character as an aspirational, non-binding document, it is unlikely to be currently accepted as international customary law.
However, such a transition is entirely possible. As predicted by the Waitangi Tribunal, due the moral and political force of the Declaration, it will in time “form the basis of a new body of customary international law on the subject of indigenous rights.”[58]
It has also been argued by scholars such as Professor Bartolome Clavero that the Declaration is a legally binding instrument, based on the wording of Article 42, which proclaims that all states and bodies of the United Nations, including the Permanent Forum on Indigenous Issues are to promote the full application of the Declaration.[59] His argument is threefold: (1) that the wording of Article 42 uses the stronger expression of “full application”[60] as opposed to other similar instruments; (2) Article 42 also singles out the Permanent Forum on Indigenous Issues, and thus is the first Declaration that has an assigned body in the absence of a treaty and therefore ‘’without the mediation of state ratification;’’[61] (3) it was created by working with the indigenous peoples themselves.[62]
A question that continues to be raised is, what worth is the Declaration? If it is a purely aspirational standard and only affirmed as a useful political tool, how can it possibly promote indigenous rights?
However, contemplating the Declaration in this light is to take it only at face-value. Perhaps the reason that Australia and New Zealand affirmed it was because it was in their own political interests. However, does this diminish the fact that it was affirmed? Norms of human rights can become active domestically either voluntarily, through a gradual absorption into the national psyche, or through international pressure to conform to the prevailing world order. Either way, they are present where they were previously non-existent.
It may be argued, in the case of an aspirational document, that this difference is critical, given a country can surrender to pressure to affirm, but then take no further action. I would argue otherwise. This initial pressure is only an indication of what is to come. If New Zealand and Australia capitulated to international persuasion to adopt the Declaration, there is no reason why they will not also submit to pressure to adhere to its standards.
It is at this point that the Declaration could be seen as crystallising into international customary law. Such a possibility is not indistinct, with some observers of the opinion particular articles already have.[63]
Furthermore, there is much potential within the judicial branches of each country to utilise the Declaration, as can be seen already seen in some of the cases which have considered it. Although legally the Declaration is non-binding, the courts may still use it as an important resource in their decision-making. Furthermore, if the Declaration solidifies into international customary law, the courts will have a powerful tool to enable the promotion of indigenous rights.
Beyond these political and judicial implications, the Declaration also holds repercussions for the Aboriginal and Maori peoples in the way it provides a framework of rights upon which they can leverage their claims. Not only does the Declaration educate indigenous peoples on what their rights actually are,[64] it gives them hope that persistence in their ongoing battles with historically unresponsive governments and courts can bring about change.
The final conclusion is that we cannot assume too much too fast about the Declaration. Its journey into Australian and New Zealand was a slow and reluctant one and now that it has arrived, we must give it time. As Eddie Durie, former Maori Land Court judge stated: [65]
...important statements of principle, established through international negotiation and acclamation filter into the law in time, through both governments and the courts, which look constantly for universal statements of principles in developing policy or deciding cases.
Therefore, a dismissal of the Declaration as non-binding and subsequently worthless is a rash and superficial act, disrespecting centuries of hardship, violence, struggle, and injustice. The Declaration is a break-through of momentous proportions and we must remind ourselves that all great things take time.
[*] Laura MacKay is currently in
her fourth year of a BA/LLB at the University of Otago. Under her BA, she is
majoring in Politics and
minoring in Art
History.
[1]Waitangi Tribunal
Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy
Affecting Māori Culture and Identity (Wai 262, 2011) at
234.
[2] “Fed Govt Endorses
UN Declaration on Indigenous People” (3 April 2009) AAP General News
Wire <search.proquest.com/docview/448179436>.
[3] DJ Round “UN Declaration
on the Rights of Indigenous Peoples” [2009] NZLJ 392 at 395.
[4] Claire
Charters “The Rights of Indigenous Peoples” [2006] 9 NZLJ
335.
[5] John B Henriksen
“The UN Declaration on the Rights of Indigenous Peoples: Some Key Issues
and Events in the Process”
in Claire Charters and Rodolfo Stavenhagen
(eds) Making the Declaration Work: The United Nations Declaration on the
Rights of Indigenous Peoples (IWGIA, Copenhagen, 2009) at 81.
[6] Adelfo Regino Montes and
Gustavo Torres Cisneros “The United Nations Declaration on the Rights of
Indigenous Peoples: The Foundation
of a New Relationship between Indigenous
Peoples, States and Societies” in Claire Charters and Rodolfo Stavenhagen
(eds) Making the Declaration Work: The United Nations Declaration on the
Rights of Indigenous Peoples (IWGIA, Copenhagen, 2009) at
151.
[7] “United we Stand-
Support for the United Nations Indigenous Rights Declaration a Watershed
Moment” (3 April 2009) Australian
Human Rights Commission
<http://www.humanrights.gov.au/news/media-releases/2009-media-release-united-we-stand-support-united-nations-indigenous-rights>
.
[8] Mamari Stephens
“Free and Equal to All Other Peoples: Some Implications of New
Zealand’s Support for the Declaration
on the Rights of Indigenous
Peoples” Post Treaty Settlements
<posttreatysettlements.org.nz/free-and-equal-to-all-other-peoples>.
[9]
Louis Rodriguez-Pinero Royo “Where Appropriate: Monitoring/ Implementing
of Indigenous Peoples’ Rights under the Declaration”
in Claire
Charters and Rodolfo Stavenhagen (eds) Making the Declaration Work: The
United Nations Declaration on the Rights of Indigenous Peoples (IWGIA,
Copenhagen, 2009) at 314.
[10] UN
GAOR, 61st sess, 107th mtg, UN Doc A/61/PV.107 (13
September 2007) at 22.
[11]
Rosemary Banks, H.E Ambassador “Statement on Behalf of Australia, New
Zealand and the United States (United Nations General
Assembly 61st
session Third Committee: Item 64(a))” (16 October 2006) New Zealand
Ministry of Foreign Affairs and Trade
<http://www.mfat.govt.nz/Media-and-publications/Media/MFAT-speeches/2006/0-16-October-2006b.php>
.
[12]
Banks, above n 11.
[13] Banks,
above n 11.
[14] Hon. Dr. Pita
Sharples, Minister of Maori “Mihi to United Nations Permanent Forum on
Indigenous Issues (Ninth session of the
United Nations Permanent Forum on
Indigenous Issues)” (19 April 2010) New Zealand Ministry of Foreign
Affairs and Trade
<http://www.mfat.govt.nz/Media-and-publications/Media/MFAT-speeches/2010/0-19-April-2010.php>
.
[15]
(20 April 2010) 662 NZPD 10238.
[16] “Maori Population
Estimates” (2012) Statistics New Zealand
<http://www.stats.govt.nz/browse_for_stats/people_and_communities/maori.aspx#popn>
.
[17]Tracey
Watkins “Hide: Indigenous Declaration Breaches Deal” (20 April 2010)
Stuff
<www.stuff.co.nz/national/politics/3600224/Hide-Indigenous-declaration-breaches-deal>.
[18]
Andrew Geddis ‘With Nary a Whisper of Drama, Signifying Much’ (21
April 2010) Pundit
<www.pundit.co.nz/content/with-nary-a-whisper-of-drama-signifying-much>.
[19] NZPD 10238, above n
15.
[20] Charters “The Rights of Indigenous Peoples”, above n 4,
at 336.
[21]“PM: No
Practical Effect in UN Rights Declaration” (20 April 2010) 3News
<www.3news.co.nz?PM-No-practical-effect-in-UN-rights-declaration-/tabid/419/articleID/151913/Default.aspx>.
[22]
Kanchana Kariyawasam “The Significance of the UN Declaration on the Rights
of Indigenous Peoples: The Australian Perspectives”
(2010) 11 Asia-Pacific
Journal on Human Rights and the Law
1.
[23] “PM Defends Refusal
to Sign UN Indigenous Bill” ABC Premium News (Sydney, 15 September
2007).
[24] “Fed Govt
Endorses UN Declaration on Indigenous people”, above n
2.
[25] “United we Stand-
Support for United Nations Indigenous Rights Declaration a Watershed Moment for
Australia” (3 April
2009) Australian Human Rigts Commission
<http://www.humanrights.gov.au/news/media-releases/2009-media-release-united-we-stand-support-united-nations-indigenous-rights>
.
[26] “Fed Govt
Endorses UN Declaration on Indigenous People”, above n
2.
[27] Megan Davis
“Indigenous Struggles in Standard-Setting: the United Nations Declaration
on the Rights of Indigenous Peoples”
[2008] MelbJlIntLaw 17; (2008) 9 Melbourne Journal of
International Law 439 at 470.
[28] “Fed Govt Endorses UN
Declaration on Indigenous People”, above n
2.
[29] See The Northern
Territory Emergency Response Act 2007 (NT) ss 6A, 26, 31 and Social Security and
Other Legislation Amendment (Welfare Payment Reform) Act 2007 s
123TA.
[30] “The Suspension
and Reinstatement of the RDA and Special Measures in the NTER” (2011) The
Australian Human Rights Commission
<http://www.humanrights.gov.au/publications/suspension-and-reinstatement-rda-and-special-measures-nter-1#_edn1>
.
[31] Monique Wilson From Stop
the Intervention Collective in “Fed Govt Endorses UN Declaration on
Indigenous People”, above
n 2.
[32] James Anaya
“Statement of the Special Rapporteur on the Situation of Human Rights and
Fundamental Freedoms of Indigenous People”
(2009) 7 ILB 20 at 21.
[33] “Fed Govt Endorses UN
Declaration on Indigenous People,” above n
2.
[34] “Australia
Government Endorses UN Declaration on the Rights of Indigenous Peoples”
(2009) Indigenous Portal
<www.indigenousportal.com/World/Australia-Government-endorses-UN-Declaration-on-the-Rights-of-Indigenous-Peoples.html>.
[35]
“New Congress to Represent Aboriginal and Torres Strait Islanders”
(2010) 7 ILB 3.
[36]
“About Us” National Congress of Australia’s First Peoples
<http://nationalcongress.com.au/about-us/>
.
[37]
“UN Concerned About Intervention Programme (1 August 2012) AAP General
News Wire
<http://search.proquest.com/docview/1030299696/abstract?accountid=14700>
.
[38] Greenpeace of New
Zealand Inc. v Minister of Energy and Resources [2012] NZHC
1422.
[39] Greenpeace v
Minister of Energy and Resources, above n 38 at [141].
[40] Taueki v Horowhenua
District Council B201263494 NZ MLC A200090001234 17, 18 December
2012.
[41] Takamore v
Clarke [2011] NZCA 587.
[42]
Takamore v Clarke, above n 41 at
[16].
[43] Takamore v
Clarke [2012] NZSC 116 at [12].
[44] New Zealand Maori
Council v Attorney-General [2013] NZSC
6.
[45] NZ Maori Council v
A-G, above n 22, at [92].
[46] NZ Maori Council v
A-G, above n 22, at
[92].
[47] Ko Aotearoa
Tēnei, above n 1, at
34.
[48] Waitangi Tribunal
Stage 1 Report on the National Freshwater and Geothermal Resources Claim
(Wai 2358, 2012) at 140.
[49]
Cheedy v Western Australia [2010] FCA 690 2010 WL 2641906 at
[106].
[50] Thompson v
Dean FMCAfam 1074 2011 WL
5844174.
[51] Knightley v
Brandon [2013] FMCfam 148 013 WL 653284 Federal Magistrates
Court.
[52] Knightley v
Brandon, above n 51, at
[117].
[53] Rodriguez-Pinero
Royo, above n 9.
[54] Charters
“The Rights of Indigenous Peoples,” above n 4, at
335.
[55] Charters “The
Rights of Indigenous Peoples,” above n 4, at
335.
[56] Statute of the
International Court of Justice, Article 38(1)(b).
[57] Stephens, above n
8.
[58] Ko Aotearoa
Tēnei, above n 1, at
234.
[59] Louis Rodriguez-Pinero
Royo, above n 9, at 315.
[60]
Louis Rodriguez-Pinero Royo, above n 9, at
315.
[61] Louis Rodriguez-Pinero
Royo, above n 9, at 315.
[62]
Louis Rodriguez-Pinero Royo, above n 9, at
315.
[63] Davis, above n 27, at
465.
[64] Davis, above n 27, at
468.
[65] Tracey Watkins
“Judge hails big advance for Maori” (2010) Stuff
<www.stuff.co.nz/nation/politics/3608428/Judge-hails-big-advance-for-Maori>.
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