Indigenousness as a Protected Ground of Discrimination

Abstract

<p>The major international human rights instruments do not explicitly identify being indigenous as a protected ground of discrimination. Notwithstanding, protected grounds common to these instruments, such as ‘ethnicity’, undoubtedly encapsulate indigenousness. More interesting than whether it is a protected ground of discrimination is therefore the nature indigenousness attains as a such. This is the focus of this chapter. <p>Indigenousness as a protected ground of discrimination is marked by indigenous peoples having emerged as sui generis legal subjects within the international normative order, with rights particular to them. This singularity tests the right to non-discrimination in at least two significant ways. First, as ‘peoples’ not defined in terms of the aggregate populations of states, but who by contrast make up segments thereof, indigenous peoples by virtue of their mere existence bring the question to the fore whether the right to non-discrimination can attach, in addition to individuals, also to ‘peoples’. Second, as indicated, at the base of the international indigenous rights regime is a factual recognition of indigenous peoples as distinct, and an attendant legal acknowledgment that indigenous rights should therefore focus on allowing indigenous peoples and communities to preserve and develop their unique societies, ways of life and collective identities. From a non-discrimination vantage point, this entails that the aspect of the right that calls for differential treatment becomes salient with respect to indigenous groups. In fact, the aspect calling for alike treatment is potentially counterproductive. <p>This chapter examines the nature of indigenousness as a protected ground of discrimination against the backdrop of the above. More specifically, it addresses whether the right to non-discrimination or equality principles more broadly attach to indigenous peoples, thus entitling them to equal treatment with other peoples, and, if so, what bearing this has on the understanding of their rights as peoples. In addition, the chapter examines under what circumstances indigenous communities have the right to differential treatment, and what is meant with ‘differential treatment’ then. The chapter does not engage with the although from a practical perspective pertinent, from a legal vantage point less challenging, issue of indigenous individuals’ as potential victims of discrimination.