State sovereignty, the United Nations and international instruments for Indigenous peoples: HSC Legal Studies

What this dot point is asking

The second part of the option, responses to indigenous peoples, lists the roles of eight actors. This page covers the first three: the nation state and state sovereignty, the United Nations and international instruments. The syllabus asks you to examine the role of sovereignty in assisting and impeding the recognition of the rights of indigenous peoples. Courts, intergovernmental organisations, NGOs and the media are on the courts, IGOs, NGOs and media page, and Australia's federal structure has its own page.

State sovereignty is especially complex in this option because it works on two levels. Internationally, a state's sovereignty means it decides whether to accept and implement international standards. Domestically, the state's claim to sovereignty over Indigenous lands is itself the product of colonisation, and many Indigenous peoples assert that their own sovereignty was never ceded, a point made in the Uluru Statement from the Heart (2017). NESA's 2025 feedback rewarded responses that explained sovereignty as "a determining factor in both compliance and non-compliance".

The answer

The nation state and state sovereignty

A nation state has a defined territory, a permanent population, a government and the capacity to enter international relations; state sovereignty is its supreme authority within that territory. The UN Charter is built on the sovereign equality of states (art 2(1)) and non-intervention in their domestic affairs (art 2(7)). For Indigenous peoples, this has a double edge: the state that holds sovereignty over their lands is usually the state that dispossessed them, but it is also the only body that can give their rights legal force.

How sovereignty assists recognition.

• Constitutional recognition. Canada's Constitution Act 1982 s 35 "recognized and affirmed" existing Aboriginal and treaty rights, which the Supreme Court of Canada has used to recognise Aboriginal title (Tsilhqot'in, 2014).
• Implementing UNDRIP. Canada passed the United Nations Declaration on the Rights of Indigenous Peoples Act (21 June 2021), and British Columbia its Declaration on the Rights of Indigenous Peoples Act (2019), requiring laws to be aligned with UNDRIP.
• Land and resources. Norway's Finnmark Act 2005 transferred about 95 per cent of the land in Finnmark to the Finnmark Estate, governed by a board appointed by the Sámi Parliament and the county council. Aotearoa New Zealand's Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 recognised the Whanganui River as a legal person, reflecting Māori understanding of the river as an ancestor.
• Australia. Australia used its sovereign law-making power to pass the Racial Discrimination Act 1975 (Cth) and the Native Title Act 1993 (Cth), to endorse UNDRIP in 2009, and (through Victoria) to sign a statewide treaty in 2025.

How sovereignty impedes recognition.

• Consent to international law. A state is bound only by treaties it ratifies. Australia has not ratified ILO Convention 169, and UNDRIP is a non-binding declaration that Australia has not incorporated into domestic law. In 2007 Australia, Canada, New Zealand and the United States voted against UNDRIP, citing concerns about land, free, prior and informed consent and sovereignty.
• Territorial integrity. UNDRIP art 46 states that nothing in it authorises action impairing the territorial integrity or political unity of states.
• Overriding rights for national interests. The Commonwealth suspended the Racial Discrimination Act to implement the Northern Territory Emergency Response in 2007. In Brazil, after the Supreme Federal Court rejected the "marco temporal" (time frame) thesis in 2023, Congress passed Law 14.701/2023 to impose it; in December 2025 the Court declared its key provisions unconstitutional.
• Political change. Queensland repealed its Path to Treaty Act in November 2024; in Aotearoa, the Treaty Principles Bill (defeated in April 2025) sought to redefine the Treaty of Waitangi.
• Ignoring international criticism. States can reject the views of UN bodies. Australia has not changed its law in response to many UN recommendations, including those made at its Universal Periodic Review in January 2026.

The United Nations

The UN has built a dedicated system for Indigenous rights over the past 25 years.

Treaty body decisions. The Human Rights Committee has applied ICCPR art 27 to Indigenous peoples in Lovelace v Canada (1981), where a Maliseet woman lost her status and right to live on her reserve after marrying a non-Indigenous man, and in Länsman v Finland (1994), which considered whether quarrying affected Sámi reindeer herding. In Daniel Billy v Australia (2022) it found Australia had violated Torres Strait Islanders' rights to culture (art 27) and to private and family life by failing to take adequate climate adaptation measures. Its views are not binding, and Australia has not accepted the finding.

International instruments

UNDRIP in more detail. Adopted by the General Assembly on 13 September 2007 (resolution 61/295) by 144 votes to 4, with 11 abstentions, after more than 20 years of drafting with Indigenous participation. It covers self-determination (arts 3 and 4), protection from forced assimilation (art 8), culture and language (arts 11 to 16), participation and free, prior and informed consent (arts 18, 19, 28 and 32), land and resources (arts 25 to 29), intellectual property (art 31) and redress (art 28). Australia endorsed it on 3 April 2009, and New Zealand, Canada and the United States followed in 2010. It is the universal minimum standard, but it is not binding.

Evaluating these responses

Judgement. State sovereignty both assists and impedes recognition, and the balance depends on political will. Where states have chosen to recognise Indigenous rights in enforceable domestic law (Canada's Constitution, Norway's Finnmark Act, Australia's native title), rights have been recognised and enforced. Where states rely only on international standards, or where political change reverses recognition, the UN and international instruments can promote and expose but not secure rights. The UN system has been highly effective at setting standards, culminating in UNDRIP, but largely ineffective at enforcing them, which makes state sovereignty the decisive factor.

In one sentence

State sovereignty is the gatekeeper for Indigenous rights, because only states can make them enforceable (Canada's s 35, Norway's Finnmark Act, Australia's native title and Victoria's treaty) but states can also refuse, override or repeal them, while the UN and instruments such as UNDRIP and ILO 169 set the standards and expose violations without being able to enforce them.

Try this

Q1. Outline the significance of UNDRIP. (4 marks)

• What the marker wants. Adoption (2007, vote), key rights (self-determination, land, FPIC), Australia's endorsement (2009), non-binding status.

Q2. Describe the role of TWO UN mechanisms in promoting Indigenous rights. (5 marks)

• What the marker wants. For example the Permanent Forum and the Special Rapporteur, with functions and an example.

Q3. Examine the role of sovereignty in assisting and impeding the recognition of the rights of Indigenous peoples. (8 marks)

• What the marker wants. Both sides with evidence from at least two countries and an overall assessment.