Constitutions and the UNDRIP

The 12th session of the United Nations Permanent Forum on Indigenous Issues was held in New York at the end of last month.  As always, a wide range of issues of particular interest to Indigenous Peoples was addressed.  One of the documents tabled at this session was a paper written by members of the Forum that considered the way in which states recognised (or not, as the case may be) the United Nations Declaration on the Rights of Indigenous Peoples within their national constitutions.  This paper is a result of the Forum’s decision in 2011 to agree to undertake a study on the nature and extent of the inclusion of the human rights of indigenous peoples in national constitutions, with reference to the rights affirmed in the United Nations Declaration on the Rights of Indigenous Peoples.
The study paper provides a useful survey of the ways in which states are constitutionalizing the rights of Indigenous Peoples.  It considers specific aspects of the constitutions of Mexico, Brazil, Ecuador, Bolivia, the Russian Federation, the USA, Canada, South Africa, the Phillipines, Denmark, Uganda, India, Malaysia, Kenya, Bangladesh, Pakistan, Finland, Sweden, Nepal, Australia, and New Zealand. Some of these constitutions provide strong recognition of Indigenous Peoples’ rights, others, while still recognizing the presence of Indigenous Peoples have slightly weaker protections.
The paper also makes an interesting link between constitutional recognition and issues of identity and well-being:

Constitutional recognition is regarded as an important symbolic and substantive development that is about not only entrenchment of substantive indigenous rights but also improvement of well-being. As one indigenous leader from Australia explains: 

“I have come to think of national constitutions as the ultimate framework within which the wellbeing — or un-wellbeing — of a nation’s citizens is provided for. For it is the national constitution that defines how a society is to be governed and the place of the citizen and his or her relationship with other citizens and the country’s institutions.” 

This idea has been supported by the Royal Australian and New Zealand College of Psychiatrists, which identifies an association between lack of constitutional recognition and the socioeconomic disadvantage of indigenous peoples. In particular, the College argues that recognition is a critical step to support the improvement of indigenous mental health and that the lack of acknowledgement of a people’s existence in a country’s constitution has a major impact on their sense of identity and value within the community and perpetuates discrimination and prejudice, which further erodes the hope of indigenous people.

The study paper makes eight concluding recommendations:
  • Indigenous peoples should be recognized in national constitutions as such, including with specific mention of their rights. States that do not currently recognize indigenous peoples or indigenous rights in their constitutions should move towards a constitutional reform process in consultation with indigenous peoples.
  • States should entrench the Declaration in national constitutions and adopt it as the framework for the development and implementation of the rights of indigenous peoples, with a special focus on article 3.
  • The African Commission on Human and Peoples’ Rights should support the action of its Working Group of Experts on the Rights of Indigenous Populations/Communities in Africa by increasing its budget.
  • States should engage in dialogue with one another in order to gain greater insight into the importance of recognizing the rights of indigenous peoples.
  • Civil society should be more active in advocating the implementation of the Declaration.
  • States should mobilize resources in order to carry out awareness campaigns and train decision makers, United Nations bodies, civil society organizations, indigenous peoples and other stakeholders in the constitutional recognition of indigenous rights.
  • States should revoke existing constitutional measures that discriminate against indigenous peoples. They should include protective safeguards, in particular with regard to racial non-discrimination, in their constitutions in consultation with the indigenous peoples of their countries.
  • States should adopt organic and enabling legislation, and corresponding executive, policy and programmatic action, to implement constitutional provisions that safeguard the rights of indigenous peoples, in consultation with their indigenous peoples.

The content of this paper is worth keeping in mind as we think about constitutional issues in the New Zealand context, with the government consideration of constitutional issues and the independentconstitutional working group (Aotearoa Matike Mai) currently engaging with people on constitutional issues through two quite distinct processes.