Indigenous peoples and self-determination: contractualising sovereignty and justice in the 21st century

Abstract

This paper addresses the struggles of Indigenous peoples for self-determination in the 21st century. Indigenous peoples make claims for self-determination in reaction to their political, economic, social, and cultural subjugation under dominant State and societal structures and orders. These claims may be understood as demands for sovereignty and justice: that is, demands for varying degrees of control over their own affairs, redress for past wrongs and present inequality, and arrangements for future security. A significant argument raised against these claims is their incompatibility with the integrity of existing politico-legal structures upon which the international and domestic orders are based. The more general historical and contemporary experience of ethnic self-determination certainly bears witness to the fact that such claims may give rise to violence, territorial separation, and independent governance as the only remedy against subjugation. This paper argues that the experience of Indigenous peoples in their struggles for self-determination is related to, but different from, the experiences of other ethnic minority peoples. The thesis of this paper is that a framework can be constructed for the peaceful and effective advancement and realisation of indigenous self-determination within existing politico-legal structures and orders in the 21st century. The thesis is developed through an analysis of the nature, history, theory, and practice regarding Indigenous peoples and self-determination. In particular, a framework is constructed around two mechanisms: a legal right of self-determination for Indigenous peoples at the international level, and a jurisprudential model of contractualism and juridical method of contractual State-building at the domestic level, with particular reference to aspects of the Aotearoa/New Zealand experience. The argument is that these two mechanisms can provide a foundation for the peaceful and effective exercise of indigenous self-determination in reconciling indigenous demands for sovereignty and justice, while maintaining the integrity of existing politico-legal structures and orders. The political and legal issues that arise nationally and internationally from self-determination claims are essentially concerned with the nature and scope of the concept that government over a people's affairs should be undertaken with the participation and consent of those people. The next step, but beyond the scope of this paper, is to consider the insights gained from an examination of indigenous self-determination in the wider search for peaceful and effective coexistence between ethnic groups, societies, and States in the 21st century.