Indigenous people’s claims are fundamentally based on the claim to sovereignty.

The central problem to this essay is the status of indigenous population in such countries, as Australia, Canada and New Zealand. All three are the members of the British Commonwealth and despite having substantial autonomy from the Crown are being nominally governed by the Queen. More broadly, the question of the status of indigenous population depends on how indigenous peoples are fitted into the Old World’ discourse of civilisation. It will not be wrong to assume that major problems that concern the indigenous peoples of the mentioned countries are connected to such issues, as sovereignty and self-determination.
In the European philosophical and political discourse sovereignty was until lately construed mainly as a geopolitical autonomy. Hence self-determination was also entailed to politics and was unquestionably linked to land possession and self-government. However, as politics began to include individual and cultural aspects, so sovereignty also began to be perceived in terms of cultural autonomy. And even in this case the question of land remains important because on many occasions ‘indigenous population’ means hunters-gatherers and nomadic tribes (as opposed to sedentary peoples), who are very often pagan. For them, land is not solely an indicator of their sovereign status; it is also the means for existence, as well as the place of religious worship.
Historically, in the Old World’s political philosophy the concept of sovereignty was inadvertently connected with the concept of statehood. Political autonomy required political institutions, of which many were inherited by the Europeans from their antique past. One may say that it was in fact narrow-mindedness that prevented Europeans ‘correctly’ construing the difference between them and the native population of Africa, Far East and South-Eastern Asia, and Americas. As we know well today, several American Indian tribes had developed the state system; consequently to ignore this fact was a mistake. However, this state system was different from European, as was the whole civic society, culture and religion, which created conditions for hailing the peoples of the New World ‘barbarians’.
In all three cases – Canada, New Zealand and Australia – one has to remember the fact of colonisation and of how this fact was explained or justified. What constitutes the main difference Canada and New Zealand on the one hand and Australia on the other is the way the colonising forces construed the status of indigenous population, and indeed that of the country. Whereas the British government have been entering into agreements with Canadian and New-Zealander native groups, thus recognising their existence, in case of Australia the whole of the continent was presented in the governmental acts of the first half of the 19th c. as terra nullius, i.e. the land in no-one’s possession. Recent 20th c. attempts to change the status of Australia from terra nullius to that of occupied country were not successful, although the government has recognised the shocking character of such simplification. As Declaration of the Principles on the Rights of Indigenous People (1985) stated,
Discovery, conquest, settlement on a theory of terra nullius and unilateral legislation are never legitimate bases for States to claim or retain the territories of indigenous nations or peoples (Anaya 2000: 190).
Most of indigenous peoples’ problems are inexorably connected to the era of colonialism, when the native population was pretty much ignored or else driven to extinction. The anti-colonial movement of the 1950s and 1960s created a favorable background to the revision of the status of indigenous population, and decades since 1980s saw several international conventions and declarations coming into force that attempted to regulate the status of the native population. Below there are some extracts from the Declaration of Principles of Indigenous Rights (1984), which were subsequently acknowledged in the Declaration of Principles on the Rights of Indigenous Peoples (1985).
Principle 1
All indigenous peoples have the right of self-determination. By virtue of this right they may freely determine their political status and freely pursue their economic, social, religious and cultural development.
Principle 2
All states within which an indigenous people lives shall recognize the population, territory and institutions of the indigenous people.
Principle 6
Each indigenous people has the right to determine the form, structure and authority of its institutions.
Principle 9
Indigenous people shall have exclusive rights to their traditional lands and its resources: Where the lands and resources of the indigenous peoples have been taken away without their free and informed consent such lands and resources shall be returned.
Principle 10
The land rights of an indigenous people include surface and subsurface rights, full rights and interior and coastal waters and rights to adequate and exclusive coastal economic zones within the limits of international law.
Principle 11
All indigenous peoples may, for their own needs, freely use their natural wealth and resources in accordance with Principles 9 and 10.
Principle 14
The indigenous peoples have the right to receive education in their own language or to establish their own educational institutions. The languages of the indigenous peoples are to be respected by the states in all dealings between the indigenous people and the state on the basis of equality and non-discrimination.
Despite being unquestionably positive towards indigenous peoples, these declarations seem to have ignored the fact of these peoples being included into an existing state system. ‘Self-determination’, Anaya writes, ‘is identified as a universe of human rights precepts concerned broadly with peoples, including indigenous peoples, and grounded in the idea that all are equally entitled to control their own destinies’ (Anaya, 2000: 75). But, as Kirgis correctly remarks, pursuing self-determination as a goal in itself creates a dangerous situation when a part of population may secede from the state, especially if it considers the state government unrepresentative (Kirgis, 1992: 310; Jayasinghe, 2002).
On the other hand, as one can see from various Indian Acts in Canada that were first introduced in 1876 and have since been revised, the Indian reserves are in the possession of the Crown, which authorises its use for various purposes. Our particular interest may be directed to the article 19 that outlines the role of the Minister in surveying reservations (http://laws.justice.gc.ca/en/I-5/73230.html):
19. The Minister may
(a) authorize surveys of reserves and the preparation of plans and reports with respect thereto;
(b) divide the whole or any portion of a reserve into lots or other subdivisions; and
(c) determine the location and direct the construction of roads in a reserve.
This certainly brings into question the degree of political or indeed cultural independence of the native population, as there were incidents of building a golf course in place of an Indian worship ground (Anaya, 2000: 152). At the same time, often rather than seldom the Crown has conceded to giving autonomy to the indigenous population, as international law demands. In Canada, the Nunavut province was created (1999), which is populated mainly by the native peoples; in Australia, The Native Title Act (1993) has allowed some aboriginal groups to successfully reclaim the land rights; and in New Zealand, the Treaty of Waitangi Act (1975) has been expected to settle conflicts between the local tribes and the white population.
Unfortunately, the good will of either government or international community cannot help eradicate major problems that arise from the status and treatment of indigenous population. Matthew Brace reported on the hideous conditions of life of the Australian indigenous peoples, which existed despite the attempts to facilitate the co-existence. On many occasions, indigenous population in Australia is still being driven to extinction because indigenous peoples are largely disadvantaged, economically, judicially and politically, as well as socially and culturally (Brace, 2001). The necessity to find a solution to the problems is so grave that a research centre was created (http://www.atns.net.au/index.php/); however, as its first collective monograph has shown, the solution is still very far away due to many misconceptions and unsettled misunderstandings among scholars themselves (Ritter, 2005).
As other scholars point out, most notably James Anaya, the main problem with self-determination is that it is often construed as a goal, whereas one should primarily consider its remedial quality. In this context it is important to distinguish between two tendencies in decolonisation: the one which goal was to overthrow the alien rule in order to create a new state, and the one which goal is to remedy the violations of substantive self-determination. Indigenous peoples fall into the latter group (Anaya, 2000: 80).
Finally, as Ivison observed,
the development of the Indigenous Sector [T. Rowse] shows that self-determination, no less than assimilation, demands a certain kind of acculturation into mainstream institutions and processes. But this doesn’t mean that one necessarily collapses into the other–that self-determination has failed and assimilation unavoidable or indeed that assimilation is always wrong. Instead, the value of self-determination has to be judged from the perspective of those it is supposed to empower (Ivison, 2004).