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A sea change on the UN Declaration – or is it?

In 2007, 143 members of the United Nations voted to support the Declaration on the Rights of Indigenous Peoples. Only four countries registered votes against the Declaration: Australia, New Zealand, Canada and the United States. Immediately after the General Assembly vote, all four of these countries (known among indigenous organizations as “CANZUS”) issued simultaneous diplomatic statements that attempted to justify their individual votes, citing the multiple problems they had with the text. Each of the four emphasized that the Declaration would not be binding on them since they did not vote in favor of it.

Since 2007, indigenous peoples all over the world have been drawing attention to these four countries’ resistance to the Declaration on the Rights of Indigenous Peoples, attempting to embarrass or even shame them on the world stage for standing alone in opposition to the human rights document that articulated minimum international standards on indigenous rights. While all four countries have repeatedly, and often quite defensively, claimed that they will not be moved by such meaningless international pressure, two of these countries have now changed their official positions on the Declaration, and the other two are currently reviewing their stance, sending clear signals to the international community that an official change in their positions may be forthcoming.

Certainly, this sudden change of heart in the CANZUS group is reason to celebrate. Indigenous peoples of the world who have labored tirelessly for decades to achieve a global consensus statement on indigenous rights have finally achieved their goal. Furthermore, these recent position changes also demonstrate that the CANZUS states are indeed subject to diplomatic and moral persuasion on indigenous rights, even if they try to vehemently deny it.

A closer look at the fine print and provisos offered by Australia, Canada and New Zealand, however, should offer some pause to the celebratory mood.

In April 2009, the incoming Rudd government in Australia was the first to announce a position change, indicating that it was now officially supporting the Declaration. However, the statement issued by Australian Indigenous Affairs Minister Jenny Macklin contained a number of caveats that deserve to be highlighted. There were four occasions in the statement that described the Declaration as “aspirational” and several mentions of it as “non-binding” and having no effect on Australian law.

Canada moved next. During the annual Speech from the Throne delivered March 10, Canadian Governor General Michaëlle Jean announced that the Canadian government would “take steps to endorse this aspirational document in a manner fully consistent with Canada’s Constitution and laws.”

Now in April, at the United Nations Permanent Forum in New York, New Zealand’s Maori Affairs Minister Dr. Pita Sharples surprised the forum and the world with his announcement that New Zealand would officially change its position to one of support. Upon closer examination, however, it is clear that the statement delivered by Dr. Sharples contained a substantial amount of legal rhetoric that emphasized the conditional nature of New Zealand’s support. In the four-and-a-half page statement, some variation of the word “aspirational” appears six times. This statement, like both Australia and Canada, emphasized the non-binding nature of the Declaration and mentioned specifically how it would not impact New Zealand’s domestic law or policies.

Next, the aspiring multilateral internationalist Obama administration offered up a statement on the Declaration. U.S. Ambassador to the U.N. Susan Rice told the Permanent Forum that the United States would also begin to review its position, in the spirit of honoring its commitment to Native Americans. At this point, no caveats or qualifications have been mentioned.

Clearly, we are witnessing some type of sea change amongst the CANZUS states on indigenous rights and the Declaration. But, is it really a change? Or is it, upon closer examination, a change that ultimately complicates the indigenous rights struggle by providing moral, political and diplomatic cover for the CANZUS states? As Grand Chief Stewart Phillip, president of the Union of British Columbia Indian Chiefs, stated, “limited support of the Declaration threatens the very purpose, essence and integrity of the Declaration as an international instrument.”

International lawyers and diplomats choose their words carefully, and the preponderance of the terms “aspirational” and “non-binding” is disappointing. The emphasis on a strict adherence to existing domestic legal frameworks is disheartening, since the Declaration is intended to serve as a framework for indigenous-state relations based on justice and mutual respect. This very careful couching of language by Australia, Canada and New Zealand suggests that these countries are attempting to change public perception of their positions on the Declaration in order to mitigate some of the loss of international prestige that accompanied their votes against the Declaration. Meanwhile, they are holding fast to an effective position that continues to resist a full commitment to indigenous rights as articulated in the Declaration. In other words, their fundamental position on the Declaration is unchanged; it remains one of resistance to the Declaration, although that resistance is now more nuanced and shrouded under a veil of perceived international legitimacy.

Will the United States follow the lead of Australia, Canada and New Zealand and offer only limited and conditional support? Or, will the new administration honor its stated commitment to the indigenous peoples of the United States, listen to our voices, and offer its full and unqualified support for the Declaration on the Rights of Indigenous Peoples?

The next move is yours, Mr. Obama.