Indigenous Rights to the City:
Dismantling Settler-Colonial and Neo-Liberal Exclusion in Perth, Western Australia
Final Thesis, Master of Public International Law Candidate Number: 9016
Submission Deadline: 15 August 2019
Word Count: 17,899 (excluding table of contents,
acknowledgments, list of references and appendices)
Table of Contents
1 Introduction ... 4
1.1 Research Questions ... 5
1.2 Methodology ... 5
1.3 Definitions and Core Concepts ... 7
1.4 Academic Landscape ... 8
2 The Legal Foundations of Indigenous Rights to the City ... 8
2.1 Historical Development ... 8
2.2 Sources of Law and Normative Validity ... 12
2.3 Typology ... 15
2.4 Duty Bearers and Rights Holders ... 19
2.5 Reconciling Overlapping Rights ... 20
3 The Normative Content of Indigenous Rights to the City ... 21
3.1 Self-Determination ... 21
3.2 Equality and Non-Discrimination ... 23
3.3 Land, Resources and Housing ... 25
3.4 Participation in Decision-Making ... 27
3.5 Cultures, Heritage and Languages ... 29
4 Indigenous Rights to the City in Perth, Western Australia ... 31
4.1 Historical Perspective ... 31
4.2 Indigenous Land Claims in the City ... 36
4.3 Indigenous Housing in the City ... 38
4.4 Criminalisation of Indigenous Peoples in Urban Spaces ... 41
4.5 Indigenous Participation in Urban Planning ... 44
4.6 Recognition of Indigenous Cultures in the Urban Built Environment ... 47
5 Conclusion ... 49
6 List of References ... 51
7 Appendices ... 65
Acknowledgements
I would like to thank my partner and family for their patience and support, my supervisor, Peris Jones, for his invaluable advice and guidance and the many friends and colleagues who took time out of their busy schedules to share their knowledge with me.
I would also like to acknowledge and pay my respects to the Noongar people, their elders and ancestors, and recognise their continuing custodianship of country. I am a proud Wiradjuri man, but I’ve had the privilege of spending most of my life on Whadjuk Noongar boodja (country) in Walyelup (Fremantle), Western Australia. Noongar boodja has enriched my life with a deep sense of belonging and I hope my research will go some way in giving back to this place and its people.
Noongar land is a place of abundance, spirit, and culture. Noongar people cared for it before the settlers came. Noongar people continue to care for it.
Today this rich and storied Country lives under bitumen, brick and grass.
The reclaimed earth that the skyscrapers occupy is only temporary, ephemeral even. It wasn’t there in the past and it won’t be there in the future.
Excerpts from ‘Split’ by Noongar writer Cassie Lynch, Stories of Perth (Brio Books, 2018).
1 Introduction
For the first time in history, more than half of the world’s population live in cities and this is expected to increase rapidly to 70% by 2050.1 In this new urban era, cities are increasingly restructured in exclusionary ways, exacerbating inequality and pushing marginalised groups to the urban periphery.2 Indigenous peoples are also affected by these changes, a majority of whom already live in cities in many countries, including Australia, New Zealand, Canada, the United States, Bolivia, Brazil, Chile and Venezuela.3 However, the particular human rights challenges faced by urban Indigenous peoples have been accorded little visibility due to a prevailing notion that ‘authentic’ Indigeneity is antithetical to modern urban life.4
Indigenous peoples’ experiences of urbanisation have been shaped by settler-colonialism and neo-liberalism, both of which transform cities into sites of ‘erasure and accumulation through Indigenous dispossession’.5 In settler-colonial countries, urban policies and spatial planning have long been used to usurp Indigenous peoples’ territories and eliminate or contain their presence in cities.6 Similarly, the commodification of urban land and housing has often depended on the displacement of Indigenous peoples, who are deemed ‘moveable’ by the market logic of neo-liberalism.7 This ‘unique interweaving’ of both settler-colonial and neo- liberal agendas ‘sets Indigenous peoples apart from other disenfranchised groups struggling for their rights to the city’.8 In this context, cities have emerged as one of the key sites in which Indigenous rights are claimed, contested and legitimated.
1 UN-Habitat, ‘World Cities Report’ (2016) <http://wcr.unhabitat.org/main-report/>.
2 Leilani Farha, Report of the Special Rapporteur on Adequate Housing, UN Doc A/HRC/34/51 (18 January 2017); Frauke Kraas et al, Humanity on the Move: Unlocking the Transformative Power of Cities (WBGU, 2016);
Raquel Rolnik, Urban Warfare: Housing Under the Empire of Finance (Verso, 2019) 3.
3 Emily Brand, Chelsea Bond and Cindy Shannon, Indigenous in the City: Urban Indigenous Populations in Local and Global Contexts (University of Queensland Poche Centre for Indigenous Health, 9 August 2016) 4.
4 Sarah Prout Quicke and Charmaine Green, ‘Precarious residence: Indigenous Housing and the Right to the City’ (2017) 85 Geoforum 167, 170; Libby Porter, ‘Coexistence in cities: The challenge of indigenous urban planning in the twenty-first century’ in Ryan Walker, Ted Jojola, and David Natcher (eds), Reclaiming Indigenous Planning (McGill-Queen, 2013) 290, 299.
5 Tina Grandinetti, ‘Urban aloha ‘aina: Kaka‘ako and a decolonized right to the city’ (2019) 9(2) Settler Colonial Studies 227; Quicke and Green, above n 4, 168.
6 Libby Porter, Unlearning the Colonial Cultures of Planning (Ashgate, 2010); Nicholas Blomley, ‘Law, Property, and the Geography of Violence: The frontier, the Survey and the Grid’ (2003) 93(1) Annals of the Association of American Geographers 121.
7 Libby Porter, ‘Possessory Politics and the Conceit of Procedure: Exposing the Cost of Rights Under Conditions of Dispossession’ (2014) 13(4) Planning Theory 387, 388.
8 Quicke and Green, above n 4, 175.
Despite this, there is very little scholarship dealing specifically with the relationship between Indigenous rights and the emerging ‘right to the city’ under international law. It is unclear how Indigenous rights to self-determination, to traditional territories and resources, and to cultures, heritage and languages apply in an urban context. Conversely, it is unclear how the right to use, occupy and produce just, inclusive and sustainable cities applies in a settler- colonial context where cities are predicated on Indigenous dispossession. This thesis seeks to clarify the scope and content of these rights where they intersect, defining the legal boundaries of ‘Indigenous rights to the city’. Drawing on case studies from the Western Australian city of Perth, it further examines whether Indigenous peoples are able to exercise their rights to the city through urban land claims, access to housing and public spaces, participation in urban planning and the recognition of their cultures in the built environment.
1.1 Research Questions
This thesis focuses on the following research questions:
Do ‘Indigenous rights to the city’ exist under international law and, if so, what is their legal basis, typology and content?
Are Indigenous peoples able to exercise their rights to the city in Perth, Western Australia, and what are the key barriers to their fulfilment?
1.2 Methodology
The bulk of this thesis is based on legal-dogmatic methodology as the first research question is primarily concerned with analysing sources that originate in the legal process itself in order to clarify and develop the law, the complex interplay between laws and their broader systematisation.9 Legal-dogmatic method will also be used to propose solutions to dilemmas where existing law does not provide a clear answer, based on the values and principles which underpin the international human rights system.10 In addition, socio-legal methodology will
9 Carel Stolker, Rethinking the Law School: Education, Research, Outreach and Governance (Cambridge University Press, 2014) 213 – 215; Jan Vranken, ‘Exciting Times for Legal Scholarship’ (2012) 2(2) Law and Method 42, 43; Alexander Peczenik, ‘A Theory of Legal Doctrine’ (2001) 14(1) Ratio Juris 75.
10 Álvaro Núñez Vaquero, ‘Five Models of Legal Science’ (2013) 19 Revus Journal for Constitutional Theory and Philosophy of Law 53, 66; Robert Alexy, A Theory of Legal Argumentation (Oxford University Press, 2009);
Ronald Dworkin, Law’s Empire (Harvard University Press, 1986) 45, 90 and 139.
be used to examine the role that legal norms and systems play in the ‘creation, maintenance and change of social situations’.11 This will involve critically analysing international human rights law to determine whether it is fit for purpose from a broader social, political and economic perspective.12
Legal-dogmatic method involves (1) determining whether the norms in question satisfy the legal system’s criteria for validity; (2) interpreting their normative content by reference to textual, systemic and purposive arguments; and (3) applying their normative content to a factual scenario.13 In relation to the first step in this process, I am predominately concerned with the formal sources of international law, i.e. the prescriptive process by which valid legal norms are created.14 However, I reject the binary distinction between hard and soft law and instead adopt the more dynamic continuum view of sources (see below at 2.2).15
This paper is guided by the AIATSIS Guidelines for Ethical Research in Australian Indigenous Studies and the Norwegian National Guidelines for Research Ethics.16 Throughout the research process, I have respected the rights of Indigenous peoples to meaningfully participate in projects that concern them and to understand the aims, methods and results of my research. I have also endeavoured to ground my thesis in Indigenist research approaches by beginning with and centring Indigenous perspectives.17
11 David Schiff, ‘Socio-Legal Theory: Social Structure and Law’ (1976) 39(3) The Modern Law Review 287, 289.
12 Kim Economides, ‘Socio-legal studies in Aotearoa/New Zealand’ (2014) 41(2) Journal of Law and Society 257, 259.
13 Vaquero, above n 10, 62-74; Vranken, above n 9, 44-45; Richard Wasserstrom, The Judicial Decision: Toward a Theory of Legal Justification (Stanford University Press, 1961) 3; Hans Kelsen, Pure Theory of Law (University of California Press, 1967) 72; Richard Posner, ‘Legal Scholarship Today’ (2001) 115 Harvard Law Review 1314.
14 Samantha Besson, ‘Theorizing the Sources of International Law’, in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (Oxford University Press 2010), 163-185, 169.
15 Samantha Besson and Jean D’Aspremont, The Oxford Handbook on the Sources of International Law (Oxford University Press, 2017) 914.
16 AIATSIS, Guidelines for Ethical Research in Australian Indigenous Studies (2012)
<https://aiatsis.gov.au/research/ethical-research/guidelines-ethical-research-australian-indigenous-studies>;
NESH, Guidelines for Research Ethics in the Social Sciences, Humanities, Law and Theology (2016)
<https://www.etikkom.no/en/ethical-guidelines-for-research/guidelines-for-research-ethics-in-the-social- sciences--humanities-law-and-theology/>.
17 Karen Martin, ‘Ways of Knowing, Ways of Being and Ways of Doing: A Theoretical Framework and Methods for Indigenous Research and Indigenist Research’ (2003) 27(76) Journal of Australian Studies 203.
1.3 Definitions and Core Concepts
1.3.1 Indigenous Peoples
According to the UN working definition, Indigenous peoples are those peoples who inhabited a country prior to the colonisation of their ancestral territories and self-identify as such in accordance with their own social, cultural or political institutions.18 Aboriginal and Torres Strait Islander peoples are the Indigenous peoples of Australia. In this thesis, the term
‘Indigenous’ is used when referring to both Indigenous peoples globally and to Aboriginal and Torres Strait Islander peoples, and is always capitalised as a proper noun in accordance with Australian custom.
1.3.2 Cities
There is no universally accepted definition of cities, but most definitions focus on built-up urban areas with high rates of population density, administrative and economic agglomeration, and interlinked commerce or commuting patterns.19
1.3.3 Settler-Colonialism
Settler-colonialism refers to the ongoing systems of domination which seek to eliminate Indigenous peoples and cultures from a colonised territory in order to usurp their lands and resources.20
1.3.4 Neo-Liberalism
Neo-liberalism refers to a set of political beliefs in which the ‘free market’ is seen as the optimal way of organising all aspects of society and the only legitimate purpose of the state is to safeguard individual liberty, commercial interests, competition and private property.21
18 José R. Martínez Cobo, Study of the Problem of Discrimination Against Indigenous Populations (United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, 1987).
19 Economic and Social Council, The World’s Cities in 2018 (3 December 2018)
<https://www.un.org/en/events/citiesday/assets/pdf/the_worlds_cities_in_2018_data_booklet.pdf>.
20 Patrick Wolfe, ‘Settler Colonialism and the Elimination of the Native’ (2006) 8(4) Journal of Genocide Research 387.
21 Dag Thorsen and Amund Lie, ‘What is Neoliberalism?’, University of Oslo (Working Paper, 10 October 2009).
1.4 Academic Landscape
Research for this thesis uncovered just five sources dealing specifically with the interaction between Indigenous rights and the right to the city, most of which locate these concepts within the social sciences rather than human rights law.22 At the time of writing, the Special Rapporteur on the Right to Housing was drafting a report on housing for Indigenous
peoples, with a particular focus on urban areas.23 There is also a growing body of literature on the role of Indigenous peoples in urban planning, but it rarely approaches the question from a human rights perspective.24 Scholars are just beginning to explore the overlapping conceptual terrain between urban studies, Indigenous studies and settler-colonial studies, with promising linkages now emerging.25 However, there is a notable paucity of legal scholarship within this academic discourse, particularly considering it so clearly invokes the language of rights.
2 The Legal Foundations of Indigenous Rights to the City 2.1 Historical Development
Despite cities playing a central role in the dispossession and subjugation of Indigenous peoples throughout history, Indigenous rights and the right to the city have developed largely independently of each other as distinct areas of law and the relationship between them is poorly understood. This is partly due to the increasing fragmentation of international law, which has resulted in highly specialised and isolated branches of human rights that are ‘largely ill-equipped for producing integrated responses’.26 The first step then in defining Indigenous rights to the city is to understand the overlapping historical origins of these distinct regimes.
22 Quicke and Green, above n 4; Grandinetti, above n 5; Philipp Horn, Indigenous Rights to the City: Ethnicity and Urban Planning in Bolivia and Ecuador (Routledge, 2019); Benjamin Leclère, ‘Right to and on the City. The case of the American Indians of the San Francisco Bay Area’ (2017) Justice Spatiale 11 (tr Laurent Chauvet);
Ambe Njoh, ‘The Right-To-The-City Question and Indigenous Urban Populations in Capital Cities in Cameroon’
(2017) 52(2) Journal of Asian and African Studies 188.
23 OHCHR, Call for Contributions: The right to adequate housing for Indigenous Peoples (May 2019)
<https://www.ohchr.org/EN/Issues/Housing/Pages/AdequateHousingIndigenous-Peoples.aspx>.
24 See section on urban planning below at 4.5.
25 Libby Porter and Oren Yiftachel, ‘Urbanizing Settler-Colonial Studies: Introduction to the Special Issue’ (2019) 9(2) Settler Colonial Studies 177.
26 Shireen Daft, The Relationship Between Human Security Discourse and International Law (Routledge, 2018) 64; International Law Commission, Report on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc A/CN.4/L.682 (13 April 2006); Bruno Simma and
Indigenous peoples only started to gain visibility in human rights forums in the 1960s after decades of neglect by the international community.27 The recognition of Indigenous rights proceeded rapidly in the years that followed, with key milestones including the adoption of ILO Convention No. 169 and the establishment of three UN mechanisms on Indigenous rights.
After more than 20 years of negotiation between Indigenous peoples and states, the UN General Assembly adopted the Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007.28 The Declaration was supported by almost all UN Member States and the four that voted against it, including Australia, have since reversed their position. The UNDRIP sets out
‘the minimum standards for the survival, dignity and well-being of the Indigenous peoples of the world’ and is considered ‘the most universal, comprehensive and fundamental instrument on Indigenous peoples rights’.29 It includes collective rights to self-determination, ancestral lands and resources, participation in decision-making, and cultures, heritage and languages.
It was civil society organisations and Indigenous peoples who advocated for the recognition of Indigenous rights internationally, and as a result, the UNDRIP ‘substantially reflects Indigenous peoples’ own aspirations’.30 Even though the UNDRIP is not a formal agreement, it was drafted through a process described by both Indigenous representatives and states as negotiations.31 While some scholars have criticised the internationalisation of Indigenous rights as another tool for state-centric imperialism,32 others argue it is essential in decolonising international law, which itself is complicit in Indigenous dispossession.33 The key
Dirk Pulkowski, ‘Of Planets and the Universe: Self-Contained Regimes in International Law’ (2006) 17 European Journal of International Law 483.
27 Commission on Human Rights, Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its 34th session: study of the problem of discrimination against indigenous populations, UN Doc E/CN.4/RES/1982/19 (10 March 1982).
28 Declaration on the Rights of Indigenous Peoples (UNDRIP), GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007).
29 UNDRIP, art 43; UN Permanent Forum on Indigenous Issues (UNPFII), Report of the 8th Session, UN Doc E/C.19/2009/14 (18-29 May 2009) annex, para 6.
30 James Anaya, Report of the Special Rapporteur on the Rights of Indigenous Peoples, UN Doc A/65/264 (9 August 2010) para 60.
31 Emmanuel Voyiakis, ‘Voting in the General Assembly as Evidence of Customary International Law?’ in Stephen Allen and Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart Publishing, 2011) 216; UNPFII, above n 29, annex, para. 9.
32 Steven Newcomb, ‘The UN declaration on the rights of Indigenous peoples and the paradigm of domination’
(2011) 20(3) Griffith Law Review 578.
33 Amy Maguire, ‘The UN Declaration on the Rights of Indigenous Peoples and Self-Determination in Australia’
(2014) 12 New Zealand Yearbook of International Law 105; Robert A. Williams Jnr., ‘Encounters on the Frontiers of International Human Rights Law: Redefining the Terms of Indigenous Peoples' Survival in the World’ (1990) Indigenous Peoples Rights 660, 704.
contribution of the UNDRIP in this regard is its recognition of Indigenous peoples as distinct polities with the collective right to self-determination and autonomy.34
The right to the city has followed a similar trajectory, first conceived by French sociologist Henri Lefebvre in the 1960s and then further developed in critical urban theory.35 Over the past 30 years, it has attracted a considerable amount scholarly attention and has been rapidly institutionalised as an emerging human right, both in domestic legislation and international instruments.36 Notable examples include the charters adopted by Mexico City and Montreal, Brazil’s City Statute (2001), the Ecuadorian Constitution (2008, arts 30-31), the European Charter on Safeguarding Human Rights in the City (2000), the World Charter on the Right to the City (2004); the Global Charter Agenda for Human Rights in the City (2011) and the Gwangju Guiding Principles for a Human Rights City (2014).
Then in 2016, the UN General Assembly unanimously adopted the New Urban Agenda (NUA), recognising the right to the city as the overarching vision in which ‘all inhabitants, of present and future generations, without discrimination of any kind, are able to inhabit and produce just, safe, healthy, accessible, affordable, resilient and sustainable cities’.37 Although the right to the city is only mentioned once in the NUA, it permeates the ethos of the document as a directive voice and is affirmed in a number of the commitments made by states.38
While the various legal, political, academic and activist incarnations of the right to the city all differ slightly, ‘there are some values that almost all versions of the right to the city share’. 39
34 Claire Charters and Rodolfo Stavenhagen, Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (Transaction Publishers, 2009) 352–371.
35 Henri Lefebvre, Le Droit à la Ville (Anthropos, 1968); David Harvey, Rebel Cities: From the Right to the City to the Urban Revolution (Verso, 2012); Don Mitchell, The Right to the City: Social Justice and the Fight for Public Space (Guilford Press, 2003); Abigail Friendly, ‘The Right to the City: Theory and Practice in Brazil’ (2013) 14(2) Planning Theory & Practice 158.
36 Mark Purcell, ‘Excavating Lefebvre: the right to the city and its urban politics of the inhabitant’ (2002) 58 GeoJournal 99; Amelia Thorpe, ‘Between Rights in the City and the Right to the City: Heritage, Character and Public Participation in Urban Planning’, in Andrea Durbach and Lucas Lixinski (eds) Heritage, Culture and Rights: Challenging Legal Discourses (Hart, 2017).
37 New Urban Agenda (NUA), GA Res 71/256, UN GAOR, UN Doc A/Res/71/256 (23 December 2016), paras 11 and 13.
38 Thomas Coggin, ‘Law & the New Urban Agenda: A role for the right to the city?’ (11 March 2018) Fordham Urban Law Journal: City Square.
39 Mark Purcell, ‘Resisting Neoliberalization: Communicative Planning or Counter-Hegemonic Movements?’
(2009) 8 Planning Theory 140, 142.
Most notably, they all encompass rights to habitation (inhabit urban space and share in its resources), appropriation (access, occupy and use urban space) and participation (determine the form, meaning and operation of the city).40 They also emphasise the social function and use-value of cities over their exchange or market value, the importance of participatory urban decision-making and the need to protect socio-cultural diversity in cities.41
The push to recognise the right to the city in international law has been led by an alliance of civil society organisations, community activists and city governments, most recently coalescing as the ‘Global Platform for the Right to the City’.42 Like Indigenous rights, some scholars argue that legal recognition of the right to the city will undermine its counter- hegemonic potential,43 while others argue that a spatial reading of legal rights is necessary in dismantling spatial injustices - a point made by Lefebvre himself.44 In both cases, the scepticism towards legal recognition of rights is based on a particularly narrow construction of international law, and ignores critical developments regarding composite and collective rights and the increasing role of Indigenous peoples and city governments as global diplomatic actors in the international-law making process.
40 Henri Lefebvre, ‘Perspective or Prospective?’ in Eleonore Kofman and Elizabeth Lebas (eds), Writing on Cities (Wiley-Blackwell, 1996) 173-174; Mitchell, above n 35, 18-20; Purcell, above n 36, 102-103.
41 Lefebvre, above n 35, 101-103; Mark Purcell, ‘Possible Worlds: Henri Lefebvre and the Right to the City’
(2013) 36 Journal of Urban Affairs 141, 151; Walter Nicholls and Floris Vermeulen, ‘Rights Through the City’ in Michael Peter Smith and Michael McQuarrie (eds), Remaking Urban Citizenship: Organizations, Institutions, and the Right to the City (Transaction Publishers, 2012) 80.
42 Global Platform for the Right to the City, ‘The Right to the City Building Another Possible World: Guidelines for its Understanding and Operationalization’ (Report, 2016), 14,
<http://www.citiesalliance.org/sites/citiesalliance.org/files/the%20right%20to%20the%20city%20(EN)%20GPR 2C.pdf>; Gregory Scruggs, ‘Historic Consensus Reached on Right to the City in New Urban Agenda’, Citiscope (9 September 2016) <http://archive.citiscope.org/habitatIII/news/2016/09/historic-consensus-reached-right-city- new-urban-agenda>.
43 Thorpe, above n 36; Purcell, above n 41; Peter Marcuse, ‘From Critical Urban Theory to the Right to the City’
(2009) 13(2) City 193; Mehmet Bariş Kuymulu, ‘The Vortex of Rights: “Right to the City” at a Crossroads’ (2013) 37 International Journal of Urban and Regional Research 923; Margit Mayer, ‘The “Right to the City” In the Context of Shifting Mottos of Urban Social Movements’ (2009) 13 City 362, 369.
44 Marie Huchzermeyer, ‘The legal meaning of Lefebvre’s the right to the city: addressing the gap between global campaign and scholarly debate’ (2018) 83 GeoJournal 631; Thomas Coggin and Marius Pieterse, ‘Rights and the City: An Exploration of the Interaction Between Socio-economic Rights and the City’ (2012) 23(3) Urban Forum 257; Kafui Attoh, ‘What Kind of Right Is the Right to the City?’ (2011) 35 Progress in Human Geography 669; Coggin, above n 38.
2.2 Sources of Law and Normative Validity
Both the UNDRIP and the NUA were adopted as UN General Assembly resolutions, which means they come under the broad category of ‘soft law’. Soft law refers to international instruments which are ‘not legally binding in an ordinary sense’ but ‘not completely devoid of legal effects either’.45 These include the resolutions issued by international organisations and the commitments, regulatory regimes and action plans adopted by states at global conferences. In international legal theory, the distinction between hard and soft law is notoriously uncertain and goes to deeper philosophical questions which are beyond the scope of this thesis. Suffice to say there are two leading and diametrically opposed views regarding soft law, the binary view and the continuum view, and the precise legal effects of Indigenous rights to the city largely depend on which of these views you subscribe to.
According to the binary view, the very essence of law is its binding nature so the notion of
‘soft law’ is logically impossible and there is no ‘sliding scale of bindingness’.46 The binary view is grounded in the mutually reinforcing theories of legal positivism, formalism and voluntarism which essentially ‘conceive of law as a body of rules derived from secondary rules identifying formal legal sources’.47 Norms are only considered law if they have the correct pedigree under Article 38 of the Statute of the ICJ, which does not include soft law instruments.48 Proponents of the binary view draw sharp distinctions between lex lata (law as it is) and lex ferenda (law as it ought to be) and argue that the mischaracterisation of non- binding texts as legal sources undermines the normative power of international law itself.49 While the binary view remains highly influential in legal education and practice, it has been criticised by some legal scholars as unrealistic, rigid and myopic.
45 Anne Peters and Isabella Pagotto, ‘Soft Law as a New Mode of Governance: A Legal Perspective’, NEWGOV:
New Modes of Governance (Report, 2006), 4; Andrew Guzman and Timothy Meyer, ‘International Soft Law’
(2010) 2 Journal of Legal Analysis 171.
46 Peters and Pagotto, above n 45, 6; Leo Gross, ‘Problems of International Adjudication and Compliance with International Law: Some Simple Solutions’ (1965) 59(1) American Journal of International Law 48, 56; Chris Ingelse, ‘Soft law?’ (1993) 20 Polish Year book of International Law 79; Dinah Shelton, ‘International Law and Relative Normativity’ in Malcolm Evans (ed), International Law (Oxford University Press, 2014) 161.
47 Tai-Heng Cheng, ‘Making International Law Without Agreeing What It Is’, (2011) 10 Washington University Global Studies Law Review 1, 11.
48 Jean D’Aspremont, Formalism and the sources of International law (Oxford University Press, 2011) 149.
49 Prosper Weil, ‘Towards Relative Normativity in International Law?’ (1983) 77 American Journal of
International Law 413; Ian Brownlie, Principles of Public International Law (Oxford University Press, 1979) 66.
By contrast, the continuum view is based on the idea that normativity is graduated and diverse rather than ‘monolithic or unidimensional’.50 Different norms carry a variety of different legal impacts and create different degrees of legal obligation.51 The distinctions between legal norms range along a ‘constantly evolving’ and ‘inflected’ continuum which cannot be adequately described by the hard/soft dichotomy.52 Proponents of the continuum view further argue that denying the legal validity of so-called ‘soft law’ means denying the reality of international norm creation and state practice, undermining the prescriptive power of law itself.53
Graduated normativity is underpinned by the theory of policy-oriented jurisprudence, which defines legal norms as policy statements, that are accompanied by expectations of compliance and are backed up by control intention.54 Therefore the legal status of a particular norm does not depend on the form of its recognition, but rather on the circumstances of its adoption, the expectations that it creates and the subsequent conduct of relevant actors.55 Both Indigenous rights and the right to the city have arguably satisfied these criteria as there is a high degree of international consensus over their urgency and validity, their content is concrete enough to become operational as law, and both the UNDRIP and the NUA include follow-up mechanisms to encourage compliance.
The binary view is poorly suited to the international context where the sources of valid law are inherently indeterminate.56 International law is created by a variety of actors through
50 Besson, above n 14, 174; Michael Reisman, ‘The Conceptions and Functions of Soft Law in International Politics’ in Emmanuel G Bello and Bola Ajibola (eds), Essays in Honor of Judge Taslim Olawale Elias (Martinus Nijhoff Publishers, 1992) 136.
51 Peters and Pagotto, above n 45, 8; Richard Baxter, ‘The infinite variety of international law’ (1980) 29(4) International and Comparative Law Quarterly 549, 563; Oscar Schachter, ‘Towards a Theory of International Obligation’ (1968) 8 Virginia Journal of International Law 300, 322.
52 Michael Reisman, above n 50, 135, 138; Christine Chinkin, ‘Normative Development in the International Legal System’ in Dinah Shelton (ed), Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (Oxford University Press, 2000) 32.
53 Peters and Pagotto, above n 45, 9; Hanspeter Neuhold, ‘The Inadequacy of Law-Making by International Treaties: “Soft Law” as an Alternative?’ in Rüdiger Wolfrum (ed), Developments of International Law in Treaty Making (Springer-Verlag, 2005) 47.
54 Michael Reisman, above n 50, 136; Siegfried Wiessner and Andrew Willard, ‘Policy-Oriented Jurisprudence’
(2001) 44 German Yearbook of International Law 96, 101.
55 Schachter, above n 51, 322; Peters and Pagotto, above n 45, 10-11; Philip Alston, ‘The Legal Basis of a Right to Peace’ (1991) 3(3) Peace Review 23; Besson and D’Aspremont, above n 15, 914.
56 Malcolm Shaw, International Law (Cambridge University Press, 2017) 52; Harlan Cohen, ‘Finding International Law: Rethinking the Doctrine of Sources’ (2008) 93 Iowa Law Review 65.
fragmented processes of negotiation, consent and custom and there is no centralised legislature or hierarchical judiciary capable of resolving competing theories of law- ascertainment.57 International human rights law is also a public law regime which governs the behaviour of states and therefore cannot ‘rely fully upon the legal apparatus of the very state that is the subject of these norms to resolve the uncertainty’.58 Article 38 of the Statute of the ICJ is widely accepted as the starting point for the ascertainment of sources, but few international lawyers today would argue that it provides an exhaustive account of international law.59
The International Court of Justice recognises that soft law instruments, such as UN General Assembly Resolutions, ‘sometimes have normative value… even if they are not binding’.60 This normative value differs considerably depending on the specific construction of the instrument in question, the conditions attached to its adoption and its relationship to treaty and customary law.61 At the very minimum, adopting states are expected to give soft law instruments due consideration in good faith.62 Soft law may also provide guidance to states on how to implement their binding treaty obligations and may be considered evidence of opinio juris in the formation of international customary law.63
The legal effects of soft law may include building consensus towards future treaty or customary law (pre-law), complementing and guiding the interpretation of existing treaty or
57 Hilary Charlesworth, ‘Law Making and Sources’ in James Crawford and Martti Koskenniemi (eds), The Cambridge Companion to International Law (Cambridge University Press, 2012) 189; Jack Goldsmith and Daryl Levinson, ‘Law For States: International Law, Constitutional Law, Public Law’ (2009) 122(7) Harvard Law Review 1791, 1803; Fabián Augusto and Cárdenas Castañeda, ‘A Call for Rethinking the Sources of International Law’ (2013) 13 Anuario Mexicano de Derecho Internacional 355, 357.
58 Goldsmith and Levinson, above n 57.
59 Jean D’Aspremont, above n 48, 149; Augusto and Castañeda, above n 57, 360; Peters and Pagotto, above n 45, 10-11; Liam Murphy, ‘Law Beyond the State: Some Philosophical Questions’ (2017) 28(1) European Journal of International Law 203, 215; Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford University Press, 2007) 293–299.
60 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, para 70.
61 Texaco Overseas Petroleum Company and California Asiatic Oil Company v the Government of the Libyan Arab Republic (Award on Merits) (1978) 17 ILM 1, 29; Linda Senden, Soft Law in European Community Law (Oxford University Press, 2004) 235-449.
62 Questions Relating to Reports and Petitions Concerning the Territory of South-West Africa (Advisory Opinion), [1955] ICJ Rep 118.
63 Ibid; Alan Boyle, ‘Soft Law in International Law Making’ in Malcolm Evans (ed) International Law (Oxford University Press, 2014) 120; Dinah Shelton, ‘Soft Law’ in David Armstrong (ed), Routledge Handbook of International Law (Routledge, 2009) 72.
customary law (law-plus) and overcoming deadlocks where firmer solutions have failed (para- law).64 The UNDRIP and the NUA predominately fall into the ‘law-plus’ category as both Indigenous rights and the right to the city are considered ‘autonomous composite rights’
(discussed below at 2.3), embodying the convictions and expectations of adopting states regarding their binding legal obligations and the conditions for their execution in a given context.65
2.3 Typology
Human rights can be categorised in a number of different ways depending on their particular typology, which helps to clarify their content and their relationship to the broader body of international law.66 Both Indigenous rights and the right to the city can be categorised as
‘autonomous composite rights’, similar in typology to the right to development, the right to peace and the right to a healthy environment. An autonomous composite right ‘presupposes the enjoyment of the full gamut of rights encompassed in the International Bill of Human Rights’ but is more than ‘a mere compilation or synthesis of these rights’.67 It is distinguished from the discrete rights which comprise it because it provides a new framework of principles, duties and entitlements in order to address particular structural barriers that have prevented their realisation.68
Autonomous composite rights are unique in their ‘holistic approach to legal framing’ and their
‘demands for fundamental changes to the structural environment in which the right seeks to be actualised’.69 Salomon argues that composite rights are a natural progression in the development of international law, which must adapt in order to address structural environments which are not conducive to the fulfilment of human rights, including ‘the
64 Peters and Pagotto, above n 45, 22; Senden, above n 61, 457-461.
65 Margot Salomon, Global Responsibility for Human Rights: World Poverty and the Development of International Law (Oxford University Press, 2007) 88-89.
66 John Mubangizi, ‘Towards a new approach to the classification of human rights with specific reference to the African context’ (2004) 4 African Human Rights Law Journal 93, 95.
67 Ilias Bantekas and Lutz Oette, International Human Rights Law and Practice (Cambridge University Press, 2nd Ed, 2016) 556; Stephen Marks, ‘The Human Right to Development: between Rhetoric and Reality’, (2004) 17 Harvard Human Rights Journal 137, 149.
68 Global Platform for the Right to the City, above n 42, 11.
69 Terrence Paupp, Redefining Human Rights in the Struggle for Peace and Development (Cambridge University Press, 2014) 118.
negative forces and tendencies of the current global economic system’.70 Autonomous composite rights achieve this by adopting a normative approach which is ‘less about establishing a new substantive right and more about framing a system of duties that might give better effect to existing rights’.71 According to Amartya Sen’s capability theory, composite rights are frameworks through which barriers to the realisation of other rights are removed.72 They give effect to Article 28 of the UDHR, under which everyone is entitled to a social and international order conducive to the realisation of human rights.
Autonomous composite rights are consistent with the principle that all human rights are universal, interdependent, indivisible and interrelated, which has become a central maxim of international law.73 However, they challenge the classical liberal approach to individual human rights, because ‘emphasis is placed on a large number of neighbouring rights considered indispensably interlinked’.74 The notion of a distinct right inferred from and comprised of other rights is not new. Phillip Alston says that ‘a whole range of international instruments, of varying degrees of hardness, define the right to peace’.75 Similarly, Arjun Sengupta argues that the right to development ‘is not just an umbrella right or the sum of a set of rights’ but rather a vector of various human rights standards which requires the
‘improvement of some, or at least one, of those rights without violating any other’.76
Former Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, describes Indigenous rights in the same way, arguing that the UNDRIP ‘does not attempt to bestow Indigenous peoples with a set of special or new human rights, but rather provides a contextualised elaboration of general human rights principles and rights as they relate to the specific historical, cultural and social circumstances of Indigenous peoples’.77 The three UN
70 Salomon, above n 65.
71 Ibid, 7.
72 Amartya Sen, Development as Freedom (Oxford University Press, 1999) 75.
73 Vienna Declaration and Programme of Action, GA Res 48/121, UN Doc A/RES/48/121 (20 December 1993) para 5.
74 Upendra Baxi, ‘The New International Economic Order, Basic Needs and Rights: Note Towards Development of the Right to Development’ (1983) 23 India Law Journal 235.
75 Alston, above n 55, 25.
76 Arjun Sengupta, Report of the Independent Expert on the Right to Development, UN Doc E/CN.4/2002/WG.18/6 (18 September 2002) 5.
77 James Anaya, Report of the Special Rapporteur on the Rights of Indigenous Peoples, UN Doc A/HRC/9/9 (11 August 2008) paras 85-86.
mechanisms on the rights of Indigenous peoples have all reinforced this position on a number of occasions.78 By reframing existing human rights law, the UNDRIP seeks to address structural issues like settler-colonialism, which have denied Indigenous peoples the rights that they should have enjoyed all along.79
Similarly, in the preparatory works for the NUA, the right to the city was described as a right which ‘encompasses all civil, political, economic, social, cultural, and environmental rights as enshrined in existing international human rights treaties, covenants, and conventions’.80 The Global Platform for the Right to City further notes that while the right to the city is derived from all internationally agreed human rights, it is not ‘a mere juxtaposition of existing human rights standards’.81 Instead, they argue it re-frames those rights ‘to deal with the causes and consequences of a specific issue that classic human rights standards do not tackle as such:
spatial exclusion’.82 Coggin and Pieterse also define the right to the city as ‘an interrelated and interdependent package of rights rather than a singular entitlement’.83 In describing the right to the city, Peter Marcuse says ‘it is multiple rights that are incorporated here… not just a right to public space… or a right to access to the center, or a right to this service or that, but the right to a totality, a complexity’.84
Autonomous composite rights bridge the gap between what Moyn describes as the competing goals of human rights law: ‘to prevent catastrophe through minimalist ethical norms’ and ‘to build utopia through maximalist political vision’.85 Moyn is among a growing number of scholars who argue that human rights will only overcome the broader structural issues that prevent their realisation if they ‘stop trading on the moral transcendence of politics that their original breakthrough involved’ and ‘take on the burden of politics more
78 UNPFII, above n 29, annex, para 9; James Anaya, above n 30, para 60; Expert Mechanism on the Rights of Indigenous Peoples (EMRIP), Free, Prior and Informed Consent: A Human Rights Based Approach, UN Doc A/HRC/39/62 (10 August 2018) para 7.
79 James Anaya, International Human Rights and Indigenous Peoples (Aspen Publishers, 2009) 63.
80 NUA, paras 11 and 12; Preparatory Committee for the UN Conference on Housing and Sustainable Urban Development, Habitat III Policy Paper: Right to the City and Cities for All, UN Doc A/CONF.226/PC.3/14 (6 June 2016) 3.
81 Global Platform for the Right to the City, above n 42, 25.
82 Ibid.
83 Coggin and Pieterse, above n 44.
84 Marcuse, above n 43.
85 Samual Moyn, The Last Utopia (Harvard University Press, 2012) 226.
honestly’.86 Indeed, some have concluded that ‘human rights practitioners need to rethink many of the assumptions, re-evaluate their strategies, and broaden their outreach, while not giving up on basic principles’.87 Autonomous composite rights make an important contribution in this regard by engaging more directly with the broader political and economic issues that existing human rights standards have failed to address. In the case of Indigenous rights, it is the dispossession produced by settler-colonialism. In the case of the right to the city, it is the socio-spatial exclusion produced by neo-liberalism. Interestingly, these two structural issues are historically linked and mutually reinforcing.
The complex nature of autonomous composite rights makes them difficult to enforce legally and more likely to be adopted as ‘major policy objectives of a national and international legal order’.88 However, ‘their legal implications are not without significance and may be tested in political or judicial settings’.89 For example, the inclusion of socio-economic rights in the South African Constitution has allowed citizens to bring claims for a right to the city before the courts.90 Indigenous rights and the right to the city have also been recognised in the Constitutions of Bolivia and Ecuador.91 Legal enforcement of an Indigenous right to the city is unlikely in Australia, as human rights are poorly integrated into the Australian legal system.92 However, human rights can be mobilised in other ways, including through rights- based policy frameworks, action plans, monitoring tools and community advocacy.93
86 Ibid, 224-227; Radhika Balakrishnan, James Heintz and Diane Elson, Rethinking Economic Policy for Social Justice: The Radical Potential of Human Rights (Routledge, 2016); Beth Simmons, ‘The Future of the Human Rights Movement’ (2014) 28(2) Ethics & International Affairs 183; Malcolm Langford, César Rodríguez-Garavito and Julieta Rossi (eds), Social Rights Judgments and the Politics of Compliance: Making it Stick (Cambridge University Press, 2017).
87 Philip Alston, ‘The Populist Challenge to Human Rights’ (2017) 9(1) Journal of Human Rights Practice 1.
88 Theo Van Boven, ‘Categories of Rights’ in Daniel Moeckli et al (eds) International Human Rights Law (Oxford University Press, 2017) 147.
89 Ibid.
90 Coggin and Pieterse, above n 44.
91 Horn, above n 22.
92 Gillian Triggs, ‘Why an Australian charter of rights is a matter of national urgency’, The Conversation (13 August 2019) <https://theconversation.com/why-an-australian-charter-of-rights-is-a-matter-of-national- urgency-121411>.
93 Andressa Gadda, 'Human Rights’ Monitoring and Implementation: How to Make Rights ‘Real’ in Children’s Lives' (2019) 23(3) The International Journal of Human Rights 317; Azadeh Chalabi, National Human Rights Action Planning (Oxford University Press, 2018); Jo Becker, Campaigning for Justice: Human Rights Advocacy in Practice (Stanford University Press, 2012); Sofia Gruskin et al, ‘Rights-Based Approaches to Health Policies and Programs' 31(2) Journal of Public health Policy 129.
2.4 Duty Bearers and Rights Holders
Both the UNDRIP and the NUA identify states as their primary ‘duty-bearers’. However, it is important to note that human rights obligations apply to states as a whole, including all branches of government and public authorities, as well as national, regional and local governments in states with federal structures.94 The various tiers of government share responsibility for human rights obligations and must ensure institutional cooperation in this regard.95 Furthermore, states have an obligation to take effective measures to prevent businesses and private individuals from violating the rights of others.96
The rights affirmed in the UNDRIP apply equally to all Indigenous peoples and do not distinguish between those who live in rural or urban areas.97 Similarly, the rights affirmed in the NUA apply equally to all those who inhabit the city, including Indigenous peoples.98 However, some Indigenous rights relate to traditionally owned or occupied territories and resources, and many Indigenous peoples who live in cities have traditional affiliations elsewhere.99 In this sense, Indigenous rights to the city may be conceived differently by the traditional owners of the city and Indigenous peoples who have migrated to the city from other regions.100
94 International Covenant on Civil and Political Rights (ICCPR), opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), art 50; International Covenant on Economic, Social and Cultural Rights (ICESCR), opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976), art 28; Vienna Convention on the Law of Treaties (VCLT), opened for signature 23 May 1969, 1155 UNTS 332 (entered into force 27 January 1980), art 27; Human Rights Committee, General comment No 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, Un Doc CCPR/C/21/Rev.1/Add.13 (26 May 2004) para 4.
95 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, 53rd sess, UN Doc A/56/10 (November 2001); Human Rights Council, Role of Local Government in the Promotion and Protection of Human Rights, UN Doc A/HRC/30/49 (7 August 2015) para 23; Committee on Economic, Social and Cultural Rights (CESCR), General Comment No 4 on the Right to Adequate Housing, UN Doc E/1992/23 (13 December 1991) paras 12, 21.
96 Henry Shue, Basic Rights: Subsistence, Affluence and US Foreign Policy (Princeton University Press, 1980) 53- 55; Asbjørn Eide, ‘The International Human Rights System’ in Asbjørn Eide, Wenche Barth Eide, Joan Gussow, et al (eds) Food as a Human Right (United Nations University Press, 1984) 154.
97 UNDRIP, arts 1 and 2.
98 NUA, para 11; Coggin and Pieterse, above n 44, 259-260; Lefebvre, above n 40, 158-159; Marcuse, above n 43, 190-191; Purcell, above n 36, 102.
99 Ed Wensing and Libby Porter, ‘Unsettling planning's paradigms: towards a just accommodation of Indigenous rights and interests in Australian urban planning?’ (2016) 53(2) Australian Planner 91, 93.
100 Leclère, above n 22.
2.5 Reconciling Overlapping Rights
When Indigenous rights and the right to the city apply in the same situation, states and Indigenous peoples may have overlapping duties and entitlements under both normative regimes. The International Law Commission notes that many of the interpretive rules and methods used to resolve normative overlaps in treaty and customary law are also applicable to soft law.101 The presumption against normative conflict is particularly relevant as rights should generally be interpreted in a manner that maximises their harmonisation.102 It is commonplace for more than one normative regime to apply to a particular situation, especially where international instruments ‘grapple with the same type of problem at different levels or from particular (technical, geographical) points of view’.103
In such cases, ‘specific norms must be read against other norms bearing upon those same facts’ through a process of ‘reasonable accommodation’.104 Under the doctrines of treaty parallelism and systemic integration, overlapping rights should be read in a ‘mutually supportive light’ so as to bring the two standards ‘into concurrence’ with each other and the international legal system as parts of a ‘coherent and meaningful whole’.105 This process
‘follows well-worn legal pathways’, drawing on the principles of ordinary meaning, object and purpose, party intention, good faith, legitimate expectations, subsequent practice and effectiveness.106 For example, Indigenous rights and the right to development are recognised as mutually reinforcing composite rights which, when read together, create specific principles, duties and entitlements to address Indigenous exclusion from dominant development paradigms.107
101 International Law Commission, above n 26, para 490.
102 Ibid, para 37; Robert Jennings and Arthur Watts (eds), Oppenheim’s International Law (Longman, 1992) 1275; Joost Pauwelyn, Conflict of Norms in Public International Law (Cambridge University Press, 2003) 240- 244.
103 Southern Bluefin Tuna (Australia v Japan) (Jurisdiction and Admissibility) (2000) 39 ILM 1388, para 52;
Gerald Gray Fitzmaurice, ‘Third Report on the Law of Treaties’ in Yearbook of the International Law Commission (1958, vol 2) para 89(b).
104 International Law Commission, above n 26, paras 279, 416.
105 Ibid, paras 220, 413, 414 and 417; VCLT, above n 94, art 31(3)(c).
106 International Law Commission, above n 26, para 412.
107 UNDRIP, art 23; Declaration on the Right to Development, GA Res 41/128, UN Doc A/RES/41/128 (4 December 1986) arts 1(2), 5; UNPFII, Indigenous Peoples: Development with Culture and Identity, UN Doc E/C.19/2010/14 (30 April 2010) paras 19-22; Centre for Minority Rights Development and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya (2010) 276/2003 African Commission on Human and Peoples' Rights.
3 The Normative Content of Indigenous Rights to the City
The normative content of both Indigenous rights and the right to the city can be categorised under the core pillars of (1) self-determination; (2) equality and non-discrimination; (3) land, resources and living standards; (4) participation in decision-making; and (5) culture, heritage and languages. The UNDRIP and the NUA approach these core pillars from different angles, contextualising the underlying human rights obligations with more targeted principles, duties and entitlements. By mapping out where their respective approaches overlap, the two regimes can be read in a mutually supportive light to define the legal boundaries of
‘Indigenous rights to the city’ (see matrix at Appendix 1).
3.1 Self-Determination
3.1.1 Underlying Human Rights Obligations
All peoples have the collective right to self-determination, which is comprised of two key dimensions.108 The external dimension refers to the right of peoples to exercise self- government without external interference.109 The internal dimension refers to the right of peoples to determine their political status, to freely pursue their development and to freely dispose of their land and resources.110 While external self-determination may include a right to secede, internal self-determination can be exercised through a range of power-sharing arrangements within the state.111 As a general principle, external self-determination only applies to majority state populations and not to Indigenous peoples.112
108 Bantekas and Oette, above n 67, 449; Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge University Press, 1995).
109 Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res 1514(XV), UN Doc A/RES/1514(XV) (14 December 1960); Human Rights Committee, General Comment 12: The Right to Self- Determination of Peoples, UN Doc HRI/GEN/1/Rev.9 (13 March 1984), para 6.
110 ICCPR, art 1.
111 Committee on the Elimination of Racial Discrimination (CERD), General Recommendation 21: The Right to Self-Determination, 48th sess, UN Doc A/51/18 (15 March 1996) para 4.
112 Bantekas and Oette, above n 67, 455, 476; Frontier Dispute Case (Burkina Faso v Mali) (Judgment) [1986]
ICJ Rep 554, 567; Report on the Situation of Human Rights of a segment of the Nicaruguan Population of Miskiti Origin (Country Report) (Inter-American Court of Human Rights, 19 November 1983) 78-79.
3.1.2 The Obligations in an Indigenous Context
Indigenous peoples are self-determining polities with their own political, legal, economic, social and cultural systems and collectively held territories, all of which pre-date the establishment of the nation-states in which they now reside.113 As such, the UNDRIP affirms Indigenous peoples’ right to internal self-determination, including the rights to freely determine their political status, to freely pursue their economic, social and cultural development and to autonomy in matters relating to their internal and local affairs.114 Under the UNDRIP, Indigenous self-determination does not amount to a right to secession, but rather a right to autonomy as distinct polities which co-exist with the nation-state.115 Self- determination is the cornerstone of the UNDRIP and essential to the enjoyment of all other Indigenous rights.116
3.1.3 The Obligations in an Urban Context
The right to the city approaches self-determination from a different angle, seeking to address the structural barriers which prevent local autonomy and democratic participation at the urban municipal level.117 In this sense, the right to the city ‘diminishes, to the point of eventually doing away with it, the distance between the institutional power of the state on the one hand and citizens in civil society on the other’.118 As such, the NUA includes a range of commitments aimed at promoting administrative decentralisation, localising self- determination and democratising urban governance.119
113 EMRIP, Role of Languages and Culture in The Promotion and Protection of the Rights and Identity of Indigenous Peoples, UN Doc A/HRC/EMRIP/2012/3 (16 August 2012) paras 53-54; EMRIP, above n 78, para 6.
114 UNDRIP arts 3 and 4.
115 UNDRIP, art 46(1); James Anaya, ‘The Contours of Self-Determination and its Implementation: Implications of Developments Concerning Indigenous Peoples’ in Gudmunder Alfredsson and Maria Stravropoulou (eds), Justice Pending: Indigenous Peoples and Other Good Causes: Essays in Honour of Erica-Irene Daes (Kluwer Academic Press, 2002) 12.
116 James Anaya, Report Special Rapporteur on the Rights of Indigenous Peoples, UN Doc A/HRC/12/34 (15 July 2009) para 41.
117 Human Rights Council, above n 95, para 12; Hurst Hannum, Autonomy, Sovereignty, and Self-Determination (University of Pennsylvania Press, 1996) 30; Thomas Franck, ‘The Emerging Right to Democratic Governance’
(1992) 86 American Journal of International Law 46.
118 Purcell, above n 41, 146.
119 NUA paras 41 and 89.
3.2 Equality and Non-Discrimination
3.2.1 Underlying Human Rights Obligations
All people have the right to equality before the law, equal protection of the law and effective protection against discrimination.120 Discrimination is defined as any distinction, exclusion, restriction or preference based on race, sex, nationality, ethnicity, language, religion or other status, which has the purpose or effect of impairing the equal enjoyment of human rights.121 States have an obligation to respect the right to equality by refraining from direct and indirect discrimination, both in the content of their laws and in how they are applied.122 States also have an obligation to protect individuals within their jurisdiction from discrimination by private persons and entities.123 The obligation to fulfil requires that states adopt ‘special measures’ to ensure substantive equality for vulnerable and marginalised groups.124 Substantive equality does not mean uniform treatment, particularly where special measures are required to effectively address structural and systemic inequalities.125
3.2.2 The Obligations in an Indigenous Context
According to the UNDRIP, Indigenous peoples have the right to equality and non- discrimination in exercising their rights and are entitled to special measures to prevent, combat and redress discrimination against them.126 Several treaty bodies have stressed the importance of adopting special measures for Indigenous peoples due to their historical and
120 Universal Declaration of Human Rights (UDHR), GA Res 217A(III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948), art 7; ICCPR, arts 26, 2 and 3; International Convention on the Elimination of Racial Discrimination (ICERD), opened for signature 21 December 1965, 66 UNTS 195 (entry in to force 4 January 1969), art 2; Convention on the Elimination of Discrimination Against Women (CEDAW), opened for signature 1 March 1980, 1249 UNTS 13 (entry in to force 3 September 1981), art 2; Convention on the Rights of the Child (CRC), opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), art 2.
121 ICERD, art 1.
122 ICCPR, art 26; ICERD, art 2(1); CEDAW, art 2; Human Rights Committee, General Comment No 18: Non Discrimination, 37th sess, UN Doc HRI/GEN/1/Rev.7 (10 November 1989) 13; Human Rights Committee, Merits:
Communication No 1474/2006, 91st sess, UN Doc CCPR/C/91/D/1474/2006 (31 October 2007) (‘Prince v South Africa’).
123 ICERD art 2(1)(d); CEDAW art 2; Human Rights Committee, above n 94, 8.
124 ICERD arts 1(4) and 2(2); CERD, General Recommendation No 32: The meaning and scope of special
measures in the International Convention on the Elimination of All Forms of Racial Discrimination, 75th sess, UN Doc CERD/C/GC/32 (24 September 2009); CESCR, General Comment No 20: Prevention of discrimination, 42nd sess, UN Doc E/C.12/GC/20 (2 July 2009) paras 36-39.
125 Sandra Fredman, ‘Substantive Equality Revisited’ (2016) 14(3) International Journal of Constitutional Law 712.
126 UNDRIP, arts 2, 15(2).
