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In liberal democracies, should minorities have a claim to different rights?

Indigenous peoples across the world suffer lower life expectancy and higher unemployment – to secure their rights, democracies need constitutional ground rules. 

In the US and Canada, indigenous peoples protest against the construction of pipelines across their land; in Australia, they protest the celebration of Australia Day. Yet across the world something unites these communities: universally higher rates of unemployment and incarceration, and lower levels of educational achievement and life expectancy.

Their lack of individual and communal wellbeing is a direct consequence of the loss of responsibility for their own communities, and led the UN General Assembly to pass a resolution declaring the Rights of Indigenous Peoples in 2007. These include rights to practise and to maintain cultural and spiritual traditions, rights to traditional land and resources, a right “not to be subjected to forced assimilation or destruction of their culture”, and a right to self-determination. Crucially, the latter does not mean a right to independent statehood, but rather a right to self-government in the context of the postcolonial state.

Despite being presented as “a standard of achievement to be pursued,” these rights only acquire the force of law when individual countries take them up as legislation. Unfortunately, figuring out how indigenous rights fit within the legal frameworks of liberal democracies remains an ongoing struggle.

Liberalism is committed to protecting the freedom of all citizens to pursue a good life, as well as insisting on the equal moral worth of all individuals, their values, and their preferences, provided they do not involve harm to others. So, the problem of squaring indigenous rights with liberalism involves finding a justification for the distinctive rights of a minority cultural group in a way that addresses their situation but does not produce inequality or injustice for other groups.

One influential liberal response to this problem begins from the idea that liberalism protects the freedom of individuals to choose their version of the good life. Will Kymlicka argues that the culture in which individuals subscribe to a version of what is good provides the context for making choices about how to live. The liberal commitment to individual freedom implies the need to ensure “a secure cultural context from which individuals can make their choices.” In short, granting Indigenous communities special rights protects the ability of an Indigenous individual to make choices about the good life. 

These “liberal-culturalist” arguments justify minority cultural rights, but only so far as they help maintain equality of access to cultural membership. The case for minority group rights becomes dependent on empirical questions about whether or not the distinct cultures of the groups in question have survived, or whether they do provide culturally distinct contexts of choice. Yet many indigenous peoples live in liberal democracies established on colonised lands; the process of decolonisation that formalised the independence of former European colonies in the 1950s and 1960s effectively passed them by. Claims about the integrity of minority cultures are difficult to establish in postcolonial contexts where the corrosive effects of assimilation policies have undermined the bases of indigenous cultures.

“Liberal-culturalist” arguments are also vulnerable to objections from indigenous peoples, since they justify rights to land, water, or self-determination only so far as these will ensure equality of access to cultural membership. However, this may not fit with the extent of historical claims by indigenous peoples. And in the end, it may amount to little more than cultural accommodation within the postcolonial state.

Another approach to the problem of indigenous rights begins with the actual histories of colonisation and assimilation of indigenous peoples: in particular, with treaty making. Treaties were an important instrument of European colonisation that provided a basis in law for indigenous peoples’ rights to land and other resources. Although they were often ignored for long periods, the existence of treaties has in some cases helped restore a relationship based on mutual respect and negotiation between indigenous and settler communities.

Treaty making existed in many parts of the world prior to the arrival of Europeans. As a result, it provides what James Tully has called an “intercultural middle ground” that could sustain non-hierarchical relations between indigenous peoples and colonial communities. Tully argues that treaty making provides the basis for a constitutional relationship that would give inalienable rights to indigenous citizens within postcolonial, liberal democratic states. The principles of treaty making include the mutual recognition of parties to an agreement, the principle of consent, and a principle of continuity that commits the parties to the continuation of their respective political and cultural identities, unless they explicitly agree to amend them.

The idea of a treaty relationship has strong appeal to indigenous peoples. However, governments have been reluctant to endorse this idea and are often dismissive of attempts to alter existing constitutional structures. Why should they enter into a relationship with indigenous peoples based on the principles of recognition, consent, and continuity? And what resources does the liberal legal framework have that would justify the kinds of rights implied in such a relationship?

A way forward can be found in parallels between the conditions of a treaty relationship and the principles of legitimate government in liberal societies. John Rawls calls for an “overlapping consensus” in liberal societies with diverse beliefs, which establishes constitutional ground rules among citizens. In fact, Rawls argues that legitimate government under conditions of cultural and moral diversity will be achieved only on the basis of constitutional principles that all citizens can accept.

We can apply Rawls’s approach to a situation in which a state aspires to move beyond its colonial history. Indigenous citizens of such states who wish to live in accordance with their distinctive traditions and culture could demand that the principle of self-determination also be applied to them.

Liberalism is supposed to protect the freedom of all citizens to choose their own version of the good life. So agreeing on constitutional ground rules that make room for indigenous cultural rights is something that liberals should be comfortable endorsing. Agreement on such ground rules would secure the distinctive political status of indigenous peoples and ensure their voices form part of the public debate in genuinely postcolonial states.

Paul Patton is Scientia professor of philosophy at the University of New South Wales. He is the author of Deleuzian Concepts: Philosophy, Colonization, Politics.

This article is part of the Agora series, a collaboration between the New Statesman and Aaron James Wendland. Aaron is assistant professor of philosophy at the Higher School of Economics and the co-editor of Wittgenstein and Heidegger and Heidegger on Technology. He tweets @ajwendland.