Executive summary

• Methods for recognising indigenous,[1] ‘tribal’, ethnic, or religious, minorities (‘minorities’) in representative governments worldwide vary widely. At least 44 states or state-like entities[2] have some constitutional or legal mechanism explicitly enabling minority representation within their parliaments, including OECD members, developing states, and Commonwealth countries. At least 10 additional states had statutory representative bodies outside parliaments.
• Representation mechanisms include representative bodies outside parliaments (some with powers of legislative review), non-voting representatives in parliaments, reserved seats in parliaments, representatives with veto powers, candidate quotas, lower electoral thresholds in multi-member electorates, treaty tribunals, and other methods.
• International examples of separate indigenous representative bodies are discussed and  Appendix A gives details of previous Australian Indigenous representative and advisory bodies.
• Treaty tribunals in New Zealand and Canada are discussed as they may inform consideration of potential future roles of a Makarrata Commission.
• Some examples of in-parliament representation are discussed. Reserved seats in parliament have occasionally been proposed for Australia. Appendix A provides related sources.
• Most, but not all, OECD and Commonwealth states which contain indigenous peoples have recognised them in their constitutions. Many constitutions also include recognition or protection of traditional or indigenous rights, such as rights to customary lands, or special provisions for representation. Recognition in Commonwealth states (Appendix C) and relevant OECD states (Appendix D) is tabulated.
• Most countries with minority populations have signalled agreement to the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Relatively few have ratified the 1989 Indigenous and Tribal Peoples Convention (ILO 169) or the former 1957 Indigenous and Tribal Populations Convention (ILO 107). Relevant states’ agreement to these instruments is tabulated in Appendix C and D. Australia’s history with the ILO Conventions is summarised in Appendix A.

Introduction

This paper has been prepared by the Parliamentary Library to provide a comparative summary and tabulation of ways in which indigenous[3] peoples and their rights, and those of other ethnic or religious minorities (collectively, minorities or minority peoples), have been represented to or in constitutions, parliaments, executives and similar systems of governance worldwide. Short bibliographies of more detailed sources are provided for each country and system discussed. To facilitate comparison with Australia, we have tabulated information on minority constitutional recognition and representation for all countries within the Commonwealth (Appendix C) and for relevant OECD countries (Appendix D).[4]

Defining indigenous peoples

The United Nations (UN) has not adopted a formal definition of indigenous peoples, as it considers that to do so would be to undermine indigenous peoples’ own right to self-identification, noting that indigenous people have suffered due to definitions imposed by others.[5] A ‘working definition’ proposed by Jose R. Martinez Cobo, the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, in his Study of the problem of discrimination against indigenous populations, is often used:

Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal system.

This historical continuity may consist of the continuation, for an extended period reaching into the present of one or more of the following factors:

• Occupation of ancestral lands, or at least of part of them;
• Common ancestry with the original occupants of these lands;
• Culture in general, or in specific manifestations (such as religion, living under a tribal system, membership of an indigenous community, dress, means of livelihood, lifestyle, etc.);
• Language (whether used as the only language, as mother-tongue, as the habitual means of communication at home or in the family, or as the main, preferred, habitual, general or normal language);
• Residence on certain parts of the country, or in certain regions of the world;
• Other relevant factors.

On an individual basis, an indigenous person is one who belongs to these indigenous populations through self-identification as indigenous (group consciousness) and is recognized and accepted by these populations as one of its members (acceptance by the group).

This preserves for these communities the sovereign right and power to decide who belongs to them, without external interference.[6]

As part of the studies and negotiations leading to the creation of the UNDRIP, it was considered that self-identification should be a matter for indigenous peoples themselves, and creating a legally binding definition might impinge upon this right of self-determination.[7] Definitions previously imposed by some states, such as requirements that persons have a certain ‘percentage’ of ‘native blood’ (also known as a ‘blood quantum’ or ‘blood ancestry’ requirement), have historically been linked with disruption and oppression of indigenous communities.

It should be noted that the working definition does not define indigenous peoples as ‘tribal’, nomadic, pastoralist, hunter-gatherers, ‘primitive’, or other such sociocultural or economic definitions.[8] Rather, the key concepts are their self-identification as a distinct, ongoing community, people or nation possessing historical continuity, prior occupancy, currently non-dominant status, and self-determined social distinctiveness from the currently dominant and occupying nation(s) or people(s). Nor does the UN working definition require any form of ‘blood quantum’, biological marker, or pursuit of a ‘traditional’ way of life for a person to be an indigenous person.

Recognition and representation mechanisms

The methods by which minority peoples and their rights are recognised and represented vary widely across nations. Minority-specific recognition, representative or protective constitutional or legal mechanisms can be found in countries with a wide range of political and civil freedoms, from western democracies (such as New Zealand and Canada) to communist one-party systems (such as Vietnam) and theocracies (such as Iran). For comparative purposes, we have devised an approximate classification system.

Distinct indigenous representatives or representative bodies

Perhaps the mechanisms most comparable to the proposed Aboriginal and Torres Strait Islander Voice to Parliament are those which place an indigenous representative or representative body outside parliament but with a legally or constitutionally defined role, or within a parliament or assembly but with particular roles or limitations distinct from those of other parliamentarians. In a non-exhaustive search, we identified 11 countries with such representative bodies.

Some countries have bodies with advisory or administrative roles only, such as the Sámi parliaments of several Scandinavian countries, or the New Zealand Māori Council's

 ability to ‘make representations to the Minister or other person or authority as seem to it advantageous to the Maori race’.[9] Some, such as the Customary Senate of New Caledonia, have constitutionally enshrined or legally recognised bodies with ‘advise and review’ functions which are activated when a law which particularly affects indigenous, traditional or minority rights or interests is considered by parliaments. These fall short of a veto, but may oblige a parliament or executive to reconsider or review legislation or other measures to which the body objects. Also notable are the ‘non-voting representative’ members found in the US state of Maine (and in Cyprus and Kazakhstan) and proposed for the US Congress, who cannot vote on legislation but can act in other ways as members of the legislature. Appendix A gives a short history of past Aboriginal and Torres Strait Islander representative and advisory bodies in Australia.

Treaty tribunals

New Zealand and Canada, two countries often compared to Australia, have specialised tribunals in place whose role is to arbitrate disputes over treaty interpretation and (particularly in British Columbia, and Canadian territories) assist in negotiating new treaties. These bodies are usually staffed by both indigenous and non-indigenous jurists and scholars. They are not indigenous representative bodies as such, but enable indigenous peoples and the state to negotiate or undergo arbitration on an equal basis in a neutral setting. They may offer some insight into what the future role of a Makarrata tribunal, as called for in the Uluru Statement from the Heart, might be in Australia.

Reserved seats in parliaments

Reserved seats in national parliaments and assemblies (lower or upper), without additional powers, appear to be the most common mechanism for ensuring that minority interests are represented in otherwise majoritarian parliaments worldwide. Approximately a quarter of the 187 non-suspended member nations of the Inter-Parliamentary Union (IPU) have some mechanism for reserving seats for particular groups. The most common group for whom seats are reserved is women, but many countries also reserve seats for indigenous peoples or ethnic or religious minorities. Some other countries, particularly those with multi-member electorates, do not reserve seats as such but have codified requirements that party tickets must include a certain number or percentage of minority candidates. Other ‘soft’ methods for increasing minority representation include altering electoral quotas or thresholds for candidates representing minority parties, or over-representing certain geographic areas.[10]

We have identified 44 states or state-like entities[11] for which such minority reservation or representation mechanisms exist at the national level, which are tabulated in Appendix B. Some representative examples are discussed in more detail in the text. In some additional countries such structures exist at the state or provincial level, but not the national level. These are not discussed or tabulated, two exceptions: the non-voting representatives of the US state of Maine, which illustrate the proposed non-voting Cherokee representative in the US Congress, and the self-governing French overseas territory of New Caledonia.

Rationales for reserved seats vary widely. Some appear to be little more than tokens (for example, the 5 seats for non-Islamic populations in Iran’s 290-member assembly). Some are the result of power-sharing arrangements, particularly in countries previously divided by civil war or ethnic conflict. Some are the result of political evolution from previous arrangements or cultural traditions, such as Slovenia’s reserved seats for Italian and Hungarian minorities, Tonga’s reserved seats for traditional chiefs, and the UK’s reserved seats for Anglican bishops in the House of Lords. Some are to rectify the under-representation of particular groups or recognise particular circumstances, such as Taiwan and New Zealand’s reserved seats for indigenous peoples, India’s reserved seats for Scheduled Castes and Tribes, and the seats reserved for Greenland and the Faroe Islands in Denmark. Notable in this context are the Slovenian parliamentary representatives of the Italian and Hungarian minorities, who can exercise a veto over legislation which solely concerns those minorities, but otherwise act as regular members of the National Assembly of Slovenia. These Slovenian representatives appear to be the only case where the minority representatives in a parliament have any unique constitutional powers.

Reserved seats for Aboriginal and Torres Strait Islander peoples have occasionally been proposed for Australia, or for Australian states.[12] The general, although not unanimous, view has been that outside the Territories, reserved Federal seats would require constitutional change.[13] A short overview of the history and literature on this proposal is included in Appendix A.

Constitutional recognition and international instruments

Many countries with indigenous populations include recognition of indigenous peoples in their national constitutions. Many have signalled agreement to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and some have ratified ILO Convention 107 (the Indigenous and Tribal Populations Convention 1957) or its successor, ILO Convention 169 (the Indigenous and Tribal Peoples Convention 1989), which are international legal instruments protecting indigenous rights.[14] In some countries, ratified international legal instruments are automatically incorporated into domestic law, or may be drawn upon in domestic court judgements or government policy; for example, the Sámi Parliament of Norway was created in part to fulfil Norway’s obligations under ILO 169 to create a representative body.

It was not possible to detail in this paper the implications constitutional recognition or international instrument assent or ratification may have had in the various countries of the world,[15] but whether comparable (Commonwealth and OECD) countries have these forms of recognition is tabulated in Appendixes C and D, with additional information noted where available, and in the descriptions of countries discussed in the main text. Australia has not ratified either ILO Convention. Our history of engagement with the ILO Conventions is summarised in Appendix A.

Indigenous representatives or representative bodies

Sámi parliaments of Finland, Norway, and Sweden

Sámi (also Sami or Saami) people are indigenous people living in Sámpi, the northern areas of Norway, Sweden, Finland and the Russian Kola Peninsula.

Finland, Norway and Sweden all have representative bodies or ‘parliaments’ for Sámi people, which share similar characteristics. ANTaR’s submission to the Indigenous Voice process explains:

The Sámi parliaments share similar structures across the three Scandinavian countries. Established in accord with the UN’s International Covenant on Civil and Political Rights (Article 27) and the International Labour Organization’s Indigenous and Tribal Peoples Convention (No. 169), the Sámediggi do not have a formal legislative function and cannot be considered parliaments in the Westminster sense. Rather, they are elected bodies who perform an advisory role to the government in representing Sámi interests across a range of matters related to language preservation, traditional livelihoods, land rights, and wellbeing. (p. 6)

In addition to the 3 Sámi parliaments, there are also cross-national bodies such as the Sámi Parliamentary Council:

The Sámi Parliamentary Council (SPC) is the co-operational body for the Sámi parliaments in Finland, Norway and Sweden. The SPC was founded on 2 March 2000. The Sámi Parliament of Sweden joined the council in April 2002. The Sámi parliaments in Norway, Sweden and Finland each lead the council for a period of 16 months. The secretariat is the Sámi Parliament which is in charge of the council at that time. The Russian Sámi organisations are permanent participants in the SPC, since there is no elected body for the Sámi in Russia. The Russian Sámi have two permanent representatives on the Sámi Parliamentary Council. They are appointed by the Sámi Council (Sámiráđđi) for a four-year term of office.

Further reading and additional references

• Marilyn Harrington, ‘The Sami parliaments’, (factsheet), Nordic Policy Centre: The Australia Institute, 22 January 2021.
• Adam Stępień, Anna Petrétei, and Timo Koivurova, ‘Sámi Parliaments in Finland, Norway, and Sweden’, in Managing Diversity Through Non-Territorial Autonomy: Assessing Advantages, Deficiencies, and Risks, eds. Tove H. Malloy, Alexander Osipov, and Balázs Vizi, (Oxford University Press, 2015), 117–140.

Includes sections on ‘Indigenous Peoples, the Sámi, and Self-Determination’, ‘Historical Context’, and perhaps most notably ‘The Formal Positioning of Sámi Parliaments’ that details the legislative framework and power of each parliament.

• Alice Petrie, Treaties and self-determination: case studies from international jurisdictions, Research note, 8, (Parliamentary Library and Information Service, Parliament of Victoria, June 2018).

Comparative study of historical and modern treaty and similar processes in the USA, Canada, New Zealand, Victoria (Australia), and the Nordic countries.

Finland

Form of indigenous representation	The Sámi Parliament is a self-governing body of the Sámi people in Finland.
Appointments	21 members and 4 deputies are elected from the Sámi people every 4 years.
Authority/powers	The Sámi Parliament is allowed to make initiatives, proposals and statements to the authorities concerning Sámi language, culture, and their position as indigenous people. It does not have the power to create laws.
Functions	The Sámi Parliament is tasked to ‘look after the Sami language and culture, as well as to take care of matters relating to their status as an indigenous people’ (under the relevant Act).
Establishment	The Sámi Parliament was established in 1995, superseding the Sámi Delegation that operated from 1973–1995.
Constitutional recognition	Sámi people were recognised in the Finnish Constitution in 1995.
International instruments	Finland supported UNDRIP in 2007. Finland has not ratified ILO Conventions 169 or 107.

 

Further reading and additional references

• The Sámi Parliament – The representative self-government body of the Sámi, Sámediggi [Finland] website.

The Sámi Parliament (Sámediggi) is the self-government body of the Sámi, legislated at the beginning of 1996. Its main purpose is to plan and implement the cultural self-government guaranteed to the Sámi as an indigenous people.

The Sámi Parliament is the supreme political body of the Sámi in Finland. It is an independent legal entity of public law which, due to its self-governmental nature, is not a state authority or part of the public administration ... The Sámi Parliament can make initiatives, proposals and statements to the authorities. [emphasis added]

The 21 members, and 4 deputies, are elected from among the Sámi every four years. The most recent elections were conducted in autumn 2019. Due to its representative nature, the Sámi Parliament expresses an official view of the Sámi in Finland on the issues concerning them. The Plenum, a full-time chair, and an Executive Board are the main organs of the Sámi Parliament. The Sámi Parliament appoints committees to prepare issues. The operation of the Sámi Parliament is funded by the state.

Norway

Form of indigenous representation	The Sámi Parliament is a political body of the Sámi people in Norway.
Appointments	39 members are elected by 7 constituencies every 4 years.
Authority/powers	The Sámi Parliament does not have the power to create laws. However, it has taken over administrative responsibility and policy instruments in certain areas, for example in matters concerning language, culture, and education of the Sámi people.
Functions	The role of the Sámi Parliament is to preserve, safeguard and develop the language, culture and way of life of the Sámi people.
Establishment	The Sámi Parliament opened on 9 October 1989.
Constitutional recognition	Sámi people were recognised in the Norwegian Constitution in 1988.
International instruments	Norway supported UNDRIP in 2007. Norway ratified ILO Convention 169 in 1990.

 

Further reading and additional references

• ‘The Sámi Parliament of Norway’ (factsheet), Sámediggi [Norway] website.

The Sámi Parliament is democratically elected by and among the Sámi; It is an indigenous parliament and deals with all matters concerning the Sámi people. The Sámi Parliament shall improve the Sámi`s political position and promote Sámi interests, and is primarily a political body for the Sámi people. The Sámi Parliament’s role as an independent actor working together with others applies on the national and international arenas alike. No one has the authority to issue instructions to the Sámi Parliament. The Sámi Parliament identifies its own priorities and develops its own policies, based on its mandate from the Sámi People and dialogue with our communities.

… The Sámi Parliament has also taken over administrative responsibility and policy instruments in certain areas, … [for] example in matters concerning language, culture, and education.

Sweden

Form of indigenous representation	The Sámi Parliament in Sweden is both a popularly elected representative body for Sámi people in Sweden, and a state administrative agency with limited and legal regulated tasks.
Appointments	Political leadership consists of: 31 members of the Sámi Parliament Plenary Assembly who are elected by the Sámi people every 4 years and the Board of the Sámi Parliament which is appointed by the Plenary Assembly members. The Board appoints the head of the agency. The Board chair is also the Sámi Parliament President.
Authority/powers	As set out on the Sami Parliament website, under the Sami Parliament Act the Sámi Parliament is tasked to: be a central administrative agency for reindeer husbandry decide on the distribution of the State grants and of funds from Samefonden (the Sámi Foundation) for Sámi culture and Sámi organizations as well as other funds that are placed at the Sámi’s joint disposition appoint that board for Sameskolan (the Sámi School), as referred to in the Swedish Education Act decide objectives for and lead the Sámi language work, contribute to society planning and see to that [sic] the needs of the Sámi are considered, including the interests of the reindeer industry for the use of land and water inform about the situation of the Sámi carry out the other tasks that are the affairs of the Sámi Parliament according to law or another statute.
Functions	The role of the Sámi Parliament is to promote Sámi culture and act for a living Sámi culture, including activities relating to Sámi livelihoods (such as reindeer husbandry). Under the Act, the Sámi Parliament’s primary task is to monitor issues concerning the Sámi culture in Sweden.
Establishment	The Sámi Parliament was inaugurated in 1993.
Constitutional recognition	Sámi people were recognised in the Swedish Constitution in 2011.
International instruments	Sweden supported UNDRIP in 2007. Sweden has not ratified ILO Conventions 169 or 107.

 

Further reading and additional references

• ‘Background: The State and the Sami Parliament’, Sámediggi [Sweden] website.

In 1977, the Swedish Riksdag [Parliament] recognized the Sami as an indigenous people in Sweden. Since 2011 the Sami are recognized as a people in the Swedish constitution …

One motive for the establishment of the Sami Parliament was to recognize the status of the Sami as an indigenous people. If the Sami were to participate in the political life, there was a need for a representative body for the entire Sami population. The Sami as a relatively small minority in Sweden have difficulty reaching the regular democratic assemblies that are based on a majority democracy. As an example, there is no Sami representation in the Swedish Riksdag [Parliament] and only a handful of Sami are local politicians in the northernmost Swedish municipalities …

The Sami Parliament is a blend of a popularly elected parliament and a State administrative agency with limited and legally regulated tasks. There is a built-in conflict between the Sami’s desire for increased independency and the government’s restrictiveness and agency regulation …

The Sami Parliament in Sweden is for now not a body for Sami self-determination. But ever since the Parliament was established, the legal standing of the indigenous peoples has strengthened in international law. “It is now indisputable that the Sami have a right to cultural autonomy and this requires a certain degree of self-determination”, was established in the Sami Parliament Investigation in considering the roll [sic] of the Sami Parliament in Swedish democracy 2002.

New Caledonia (self-governing French overseas territory)

Form of indigenous representation	A Customary Senate was created as part of the 1998 Noumea Accords, which negotiated peace between France and the Kanak independence movement Front de Libération Nationale Kanak et Socialiste (FLNKS).
Appointments	The Customary Senate is a 16-member body with 2 members from each of 8 defined Customary Areas. Members are appointed for 5-year terms by Traditional Councils which represent the clans and tribes of each Customary Area. The presidency of the Senate rotates annually between the 8 Customary Areas.
Authority/powers	Under article 2.1.4 (a) of the Noumea Accords, the New Caledonian Congress is legally required to consult with the Customary Senate when considering any law or policy affecting Kanak identity. When the Customary Senate disagrees with the law or policy, Congress must reconsider its decision, after which the position of Congress applies. The Customary Senate can also propose new laws and policies to the Congress.
Functions	In addition to considering laws and policy regarding Kanak identity (as defined in the Noumea Accords) and representing Kanak people, the Customary Senate also provides advice on matters of customary law and land law and takes part in numerous ‘local government’ bodies and decisions. According to the New Caledonian government website (Fr), the customary senate is also represented in eighteen territorial public authorities and establishments, including Land development, development of Kanak culture, and the Academy of Kanak languages. The senate sits within all the commissions and other councils which give concrete expression to the day-to-day recognition of indigenous identity and its rights. It is also integrated into the committees relating to mining, the environment, sport, social housing, town planning and penal confinement.
Establishment	The Customary Senate was inaugurated following the 1998 Noumea Accords, and began operating in 1999.
Constitutional recognition	The French Constitution does not recognise indigenous peoples. One of the French Constitution’s principles is ‘indivisibility’, with all citizens being equal and French being the only recognised language. Among other consequences, this prohibits collecting statistics differentiated by ethnicity in France’s overseas colonies. As another consequence, a French court recently ruled that it was illegal for the Corsican Assembly to use the Corsican language in parliamentary debate.
International instruments	France supported UNDRIP in 2007. France has not ratified ILO Conventions 169 or 107.

Further reading and additional references

• ‘Noumea Accord – Digest’, Australian Indigenous Law Reporter 7(1) (2002).
• ‘Le sénat coutumier de la Nouvelle-Calédonie’, Haut-commissariat de la République en Nouvelle-Calédonie.
• Laurent Sermet, Kanak case of New Caledonia, International Law Association Report, 2018

The [Noumea] Agreement recognizes Kanak identity and also a Kanak dedicated institution, ie the Kanak Senate that has some advisory powers in the field of identity. It provides also for economic investment for the less populated and more impoverished parts, mostly Loyalty Islands and the North Province, in order to rebalance the country. The agreement establishes a gradual political decolonization in terms of irreversible powers transferred to the NC’s institutions, namely: the government, the congress, and the three provinces, such as civil law, labor law, and fiscal matters. Non transferred competences are: justice, public order, security, defense, nationality, currency, budgeting, and international relations.

…

The Organic Law, resulting from the Noumea Agreement, maintained the customary area councils and installed the customary Senate, instead of the previous advisory council. The Senate’s powers have been extended and the Senate now has the right of initiative and of referral. It has legislative co-decision power and can be considered as "the second institution of the land, alongside the Congress". The powers of the customary councils only partially overlap those of the Senate: thus, they have a power of interpretation of the customary rules and minutes of palaver that the Senate does not have organically (Article 150 Organic Law 1999).

New Zealand: New Zealand Māori Council

Form of indigenous representation	The New Zealand Māori Council is a statutory representative body under the Māori Community Development Act 1962. According to its website, the Council is made up of 48 members, nominated from 16 District Māori Councils. Within these 16 districts, there are over 120 Māori Committees, which may be organised into clusters as Māori Executives. These Māori Committees provide a representative voice for Māori communities at a marae, papakāinga and hapū level across the country. An elected Executive Committee of seven members is responsible for the day-to-day operations of the New Zealand Māori Council.
Appointments	48 Council members are nominated by the 16 District Māori Councils. Council members elect a seven-member Executive Committee.
Authority/powers	The Māori Community Development Act 1962 sets out the statutory role of the Council as a national policy-making body for Māori with regard to the cultural, economic, social and political wellbeing of Māori. This includes a power to make representations to the Minister or other parts of government: ‘18 (3) In the exercise of its functions the Council may make such representations to the Minister or other person or authority as seem to it advantageous to the Maori race.’ The Council’s legislated role is representative and advisory only. The New Zealand Māori Council advocates Māori policy development and supports community initiatives that contribute to te mana motuhake o te iwi Māori (the self-determination of the Māori people). On a number of occasions (most notably the 1987 ‘Lands’ case)[16] the Council has taken the government to court to enforce legislative requirements related to the Treaty of Waitangi.
Functions	According to their website, the New Zealand Māori Council is involved in a wide range of kaupapa (policy areas), with a focus on giving a voice to Māori communities; negotiating directly with the Crown on issues that impact Māori; providing leadership in policy development; and supporting Māori community development through community initiatives such as Māori Wardens. It has frequently initiated or taken part in referrals to the Waitangi Tribunal (see below). The Council’s homepage gives examples of current and past policies and issues in which the Council has been involved.
Establishment	According to the Council’s History page, the Council grew out of both autonomous Māori movements for self-determination such as the Kīngitanga movement, and the government-supported Māori Councils Act 1900, which provided for local government in Māori communities. Prior to the 1960s, national or regional organisations were not supported by the New Zealand Government lest they encourage ‘Māori nationalism’, but this stance was reversed with the creation of the Council in 1962.
Constitutional recognition	New Zealand does not have a single or entrenched constitution. The Constitution Act 1986 (NZ) does not mention Māori, but the Treaty of Waitangi or ‘the principles of the Treaty of Waitangi’ are usually considered part of New Zealand’s constitutional framework. The New Zealand Māori Council is not an explicit requirement of the Treaty of Waitangi or of the Constitution Act 1986.
International instruments	New Zealand voted against UNDRIP in 2007, but reversed its stance in 2010. In 2019, New Zealand began developing a Declaration Plan to implement UNDRIP. New Zealand has not ratified ILO Conventions 169 or 107.

 

See also the discussions of the Waitangi Tribunal, and the Māori Reserved Seats, below.

South Africa

Form of indigenous representation	South Africa has a National House of Traditional Leaders, and provincial Houses of Traditional Leaders in provinces where traditional leadership structures exist.
Appointments	The National House of Traditional Leaders is composed of delegates from the provincial Houses of Traditional Leaders.
Authority/powers	In South Africa, the Traditional Leadership and Governance Framework Act 2003 provides that any parliamentary bill pertaining to the customary law or customs of traditional communities must, before it is introduced and passed by the Houses of Parliament, be referred by the Secretary of Parliament to the National House of Traditional Leaders for its comment and advice. The National House must make any comment within 30 days. The National House of Traditional Leaders does not have any role in legislation beyond providing this advice.
Functions	According to their website, the House was established to: represent traditional leadership and their communities; advance the aspirations of the traditional leadership and their communities at national level; advance the plight of provincial houses of traditional leaders, traditional leadership and their communities at national government level; participate on international matters that have to do with custom, traditions and matters of common interest and influence government legislative processes at national level. The mandate of the House is to: promote the role of traditional leadership within the constitutional dispensation; promote nation-building; promote peace, stability and cohesiveness of communities; develop, preserve and promote culture and traditions of communities; consider Parliamentary Bills referred to it by the Secretary; participate in intergovernmental structures and advise the national government and make recommendations on any matter that the government may require.
Establishment	The House was established in 1997 to fulfil the new constitutional requirement for a house of traditional leaders. It is currently governed by the Traditional Leadership and Governance Framework Act 2003.
Constitutional recognition	The indigenous languages of various peoples and customary and traditional law and leadership are recognised in Chapter 12 of the 1997 Constitution. Chapter 12 also states that the role of traditional leaders is: 212(2) To deal with matters relating to traditional leadership, the role of traditional leaders, customary law and the customs of communities observing a system of customary law (a) national or provincial legislation may provide for the establishment of houses of traditional leaders; and (b) the national legislation may establish a council of traditional leaders.
International instruments	South Africa supported UNDRIP in 2007. South Africa has not ratified ILO Conventions 169 or 107.

 

Further reading and additional references

• Bertus De Villiers, ‘An advisory body for Aboriginal and Torres Strait Islander peoples in Australia: the detail may be fatal to the deal’, Brief 45, no. 2 (March 2018): 7–11. The article compares the Voice proposal (as of 2018) to the South African National House of Traditional Leaders.
• Megan Davis, ‘Indigenous constitutional recognition from the point of view of self-determination and its exercise through democratic participation’, Indigenous Law Bulletin 8, no. 19 (26 August 2015): 10–14.

Other examples

Other examples of indigenous or traditional representative bodies similar to South Africa’s National House of Traditional Leaders include the Malvatumauri Council of Chiefs (p. 13) in Vanuatu, the Assembly of People of Kazakhstan, the Senate of Lesotho, the Council of Traditional Leaders of Namibia, the House of Chiefs in Zambia (pp. 70–72), and the Ntlo ya Dikgosi (House of Chiefs) in Botswana.

• Vladimir Chlouba, ‘One Size Fits All: The Origins of Mixed Governance in Namibia’, The Journal of the Middle East and Africa 12, no. 4 (2 October 2021): 445–66.
• Wim van Binsbergen, ‘Chiefs and the State in Independent Zambia: Exploring the Zambian National Press’, The Journal of Legal Pluralism and Unofficial Law 19, nos. 25–26 (1987): 139–201.
• Marc Tabani, ‘Tannese Chiefs, State Structures, and Global Connections in Vanuatu’, The Contemporary Pacific 31, no. 1 (2019): 65–103.

Non-voting representatives to/in parliaments

Maine (US State)

Form of indigenous representation	Maine provides for 3 non-voting Native American members of the State Legislature, representing the Penobscot (since 1823 or before), the Passamaquoddy (1842), and the Houlton Band of Maliseet Indians (2012).
Appointments	Representatives are elected biennially by their nations. Significantly, nation members can vote both for their non-voting representative and for a representative of their usual legislative electorate. As the representatives cannot vote on legislation, this is held not to violate the principle of ‘one person one vote’.
Authority/powers	The powers of the representatives have varied greatly throughout history. Since 1995, representatives have possessed almost all powers except voting on laws; for example, sponsoring and co-sponsoring bills, and being members of legislative and joint standing committees. In the past there have been periods when the representatives were not seated within the chamber and only functioned as ‘state-paid lobbyists’.
Functions	Members represent their nations to and in the Legislature, including proposing bills on Native American-related matters.
Establishment	The origin of the Maine representatives is uncertain but appears to have begun by agreements between the colony of Massachusetts and the Passamaquoddy and Penobscot made during the US Revolutionary war, and a subsequent (1794) treaty. These agreements were inherited by Maine when it separated from Massachusetts in 1820. The positions were first codified in Maine state law in 1866. Before 1967, Maine Native Americans were not granted the right to vote in state elections, so the Native American representatives were the only representative mechanism for the Passamaquoddy and Penobscot peoples before that date.

 

Further reading and additional references

• S. Glenn Starbird, Jr, and Donald Soctomah, ‘Brief History of Indian Legislative Representatives (in Maine)’, Maine State Legislature website.
• Andrew Ketterer (Attorney-General), Opinion of the Maine Attorney General, Me. Op. Atty. Gen. No. 99-1 (16 November 1999)

Examines whether tribal representatives violate ‘one person, one vote’ principles.

• Cameron DeHart and Elliot Mamet, ‘Do Reserved Seats Work? Evidence from Tribal Representatives in Maine’, State Politics & Policy Quarterly (2023): 1–23.

Examines the legislative functioning and effectiveness of the non-voting representatives, particularly with proposing and facilitating the passage of legislation related to Native American people or interests. Includes additional history on the origin of the representatives.

United States of America (proposed)

Form of indigenous representation	In 2019, the Cherokee Nation requested that it receive a non-voting delegate in the US House of Representatives, in fulfilment of the Treaty of New Echota. The Treaty of Dancing Rabbit Creek with the Choctaw also proposes a non-voting delegate be provided for by Congress, but this provision has not yet been actively pursued.
Appointments	The government of the Cherokee Nation has nominated Kimberly Teehee as its prospective representative. The US House Committee on Rules has recently (November 2022) held hearings into seating the Cherokee representative.
Authority/powers	It is generally agreed that if a Cherokee delegate were seated, they would have powers and privileges similar to the existing 6 non-voting members, who represent the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, Guam, the US Virgin Islands, and the Commonwealth of Northern Mariana Islands. Non-voting members can serve and vote on committees, propose (but not vote on) legislation, and make speeches.
Functions	The delegate would represent the Cherokee Nation, and Native American concerns more broadly.
Establishment	Article 7 of the Treaty of New Echota (1835) states: ‘it is stipulated that they [the Cherokee] shall be entitled to a delegate in the House of Representatives of the United States whenever Congress shall make provision for the same.’
Constitutional recognition	The US Constitution is generally held to recognise (via Supreme Court interpretation of Article I, Section 8) the status of ‘Indian Tribes’ as distinct, sovereign, but subordinate governments, to be governed at a federal rather than state level. This sovereign status underpins treaty rights and gives many Native American reservation governments a status comparable to a state government, with their own police forces, courts, ability to levy taxes, sovereign immunity from some lawsuits, etc, although this authority usually only extends to governing Native American people. There are approximately 374 (pre-20th century) ratified US treaties with Native American peoples, but Congress has the power to unilaterally abrogate them.
International instruments	The USA voted against UNDRIP in 2007 but reversed this stance in 2010. The USA has not ratified ILO Conventions 169 or 107.

 

Further reading and additional references

• ‘Statement’ of Mainon A. Shwartz, legislative attorney, before Committee on Rules, U.S. House of Representatives hearing on “Legal and Procedural Factors Related to Seating a Cherokee Nation Delegate in the U.S. House of Representatives’’, CRS Testimony, Congressional Research Service (16 November 2022).

Provides a legal opinion that a Cherokee representative would not violate ‘one person, one vote’ equal-protection principles as US courts have previously held that:

• Non-voting representatives do not exercise legislative power
• recognition of Indian tribes is a political rather than racial determination
• The Supreme Court has upheld legislation that ‘singles out Indians for particular and special treatment’ against equal-protection challenges ‘[a]s long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians’.

• Elliot Mamet, ‘Representation on the Periphery: The Past and Future of Nonvoting Members of Congress’, American Political Thought 10, no. 3 (2021): 390–418.

Discusses the formal and informal role of nonvoting members of Congress.

As a point of comparison, under the Northern Territory Representation Act 1922, the Northern Territory had a non-voting representative in the Australian House of Representatives from 1922 until 1968.

Cyprus and Kazakhstan are the only other countries identified which have non-voting representatives of minorities in their parliaments.

Treaty tribunals

In both New Zealand and Canada, the existence of colonial-era treaties with indigenous peoples and the current need to make new treaties, or new rulings on old treaties, has given rise to new forms of negotiation, arbitration and conciliation between indigenous peoples and states.[17] In particular, New Zealand’s Waitangi Tribunal and the British Columbia Treaty Commission have become prominent; the first because of its role in arbitrating the meaning of the Treaty of Waitangi, and the second because, unlike the majority of Canadian provinces, British Columbia’s lack of historical treaties has resulted in a large scale, ongoing ‘modern treaty’ process overseen by the Commission. Both may therefore offer some comparative insights into the potential roles of a Makarrata Commission, as called for in the Uluru Statement from the Heart.

In Australia a similar but much more limited role at the national level is currently performed by the National Native Title Tribunal, which registers native title claims, Indigenous Land Use Agreements and Future Act Agreements, and may provide mediation services to native title holders and claimants and other land users. The existence and extent of native title, and any claim to compensation for taking of or damage to native title, is determined by the Federal Court.

New Zealand: The Waitangi Tribunal

The History of the Waitangi Tribunal states:

Since the Treaty of Waitangi was signed in 1840, Māori have made many complaints to the Crown that the terms of the Treaty were not being upheld. Often these petitions and protests fell on deaf ears. In 1877, one judge said the Treaty was a ‘legal nullity’. In the 1970s, Māori protest about unresolved Treaty grievances was increasing, and increasingly taking place outside the law.

By establishing the Waitangi Tribunal, Parliament provided a legal process by which Māori Treaty claims could be investigated. Tribunal inquiries contribute to the resolution of Treaty claims and to the reconciliation of outstanding issues between Māori and the Crown.

Form of indigenous representation	The Waitangi Tribunal has up to 20 members. About half the members are Māori and half are Pākehā (non-Māori). The chairperson of the Waitangi Tribunal must be a Judge or retired Judge of the High Court, or the Chief Judge of the Māori Land Court. Other judges of the Māori Land Court, if not members of the Waitangi Tribunal, can be appointed as presiding officers for a Tribunal panel. When conducting an inquiry, a panel of 3 to 7 members is appointed, at least one of whom must be Māori.
Appointments	Members are appointed by the Governor-General on the recommendation of the Minister for Māori Development, based on their relevant knowledge and experience. Several are kaumātua (elders or experts on traditional law).
Authority/powers	The Waitangi Tribunal is a standing commission of inquiry. For the most part it does not have any power to determine outcomes, only to make recommendations. If the Tribunal recommends settlement by the Crown (e.g. compensation or other restitution), these recommendations are then considered by the Office for Māori Crown Relations – Te Arawhiti. After the Lands case (below), the Tribunal gained the power to make binding recommendations for the return of Crown forest lands, or lands transferred to state-owned enterprises (including railways and educational institutions) to Māori claimants with well-founded claims. If the Government decides to settle a claim, Te Arawhiti negotiates with the claimants on behalf of the Crown. Once claimants and the Crown agree on the terms of a settlement, they sign a deed and the Crown passes legislation to give effect to it and to remove the Tribunal’s ability to inquire further into this claim; thus, claims cannot be ‘reopened’ by the Tribunal. Settlement redress is then transferred to the claimants. Registration of ‘historical’ (pre-1992) claims was closed after 1 September 2008.
Functions	The Waitangi Tribunal makes recommendations on claims brought by Māori relating to legislation, policies, actions or omissions of the Crown that are alleged to breach the principles of the Treaty of Waitangi. The role of the Tribunal is set out in section 5 of the Treaty of Waitangi Act 1975 and includes: inquiring into and making recommendations on well-founded claims examining and reporting on proposed legislation, if it is referred to the Tribunal by the House of Representatives or a Minister of the Crown making recommendations or determinations about certain Crown forest land, railways land, state-owned enterprise land, and land transferred to educational institutions. In fulfilling this role, the Waitangi Tribunal has exclusive legislative authority to determine the meaning and effect of the Treaty. It can decide on issues raised by the differences between the Māori and English texts of the Treaty, which are acknowledged by the Treaty of Waitangi Act 1975 to be different texts.
Establishment	The Waitangi Tribunal was established by the Treaty of Waitangi Act 1975 (NZ). Initially, the Tribunal could only hear claims about current or future legislation or government actions. In 1985, Parliament amended the Act to grant the Tribunal the power to investigate events dating back to 1840. Registration of ‘historical’ claims was closed on 1 September 2008. The Waitangi Tribunal’s recommendations gained increased weight after passage of the State-Owned Enterprises Act 1986 (NZ) which stated that ‘Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi’, without defining those principles. Subsequent litigation and a Court of Appeals judgement in the Lands case[18] placed significant weight on the Waitangi Tribunal’s work in determining what the ‘principles’ are and how they are to be interpreted. More than 40 pieces of New Zealand legislation now refer to the principles of the Treaty. However, the recommendations remain recommendations only.
Constitutional recognition	New Zealand does not have a single or entrenched constitution. The Constitution Act 1986 (NZ) does not mention Māori, but the Treaty of Waitangi or ‘the principles of the Treaty of Waitangi’ are referred to in many pieces of legislation and are usually considered part of New Zealand’s constitutional framework.
International instruments	New Zealand voted against UNDRIP in 2007, but reversed its stance in 2010. In 2019 New Zealand began developing a Declaration Plan to implement UNDRIP. New Zealand has not ratified ILO Conventions 169 or 107.

 

Further reading and additional references

• ‘Treaty of Waitangi’, New Zealand History.

Gives an overview of the history of the Treaty, its origin, signing, subsequent history and current developments and issues.

• 40th anniversary issue of Te-Manutukutuku Te Manutukutuku 69, (2016).

Interviews many of the initial and then-current members of the Tribunal; explores in detail the politics surrounding its founding and subsequent evolution.

• Alice Petrie, Treaties and self-determination: case studies from international jurisdictions, Research note, 8, (Melbourne: Parliamentary Library and Information Service, Parliament of Victoria, June 2018).

Comparative study of historical and modern treaty and similar processes in the USA, Canada, New Zealand, Victoria (Australia), and the Nordic countries.

• RMIT ABC Fact Check, ‘Does New Zealand’s parliament really play second fiddle to a ‘Māori Voice’?’, ABC News, 14 April 2023.

Critically examines claims that the Waitangi Tribunal is a ‘Māori voice to Parliament’ with a ‘veto power’ which has made the New Zealand parliament subservient to it.

Canada (British Columbia): British Columbia Treaty Commission

In 1973, the Canadian Supreme Court found in Calder v. Attorney-General of British Columbia (1973) that ‘aboriginal title’ (also known as native title) derived from ongoing occupancy and use could continue to exist, even in the absence of treaties or royal proclamations protecting it.[19] This finding, combined with renewed First Nations, Inuit and Metis activism, forced Canadian governments to take indigenous claims to land and treaty rights seriously and led to their recognition and protection in the Constitution Act 1982.

Section 35(1) of the Constitution Act 1982 states that ‘The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed.’ This section gives historic and modern treaties, as well as aboriginal title (‘aboriginal rights’), the protection of constitutional law. Section 25 of the Constitution Act 1982 requires that other constitutional rights and freedoms are not interpreted in ways which abrogate or derogate from aboriginal rights and freedoms. The Canadian Crown is also held by the courts to have a duty akin to a fiduciary duty to protect aboriginal rights, which has not been established in Australia.

Unlike Australia, where the taking of native title without compensation by the states was held by the High Court’s Mabo No. 2 decision to be legal up until the Racial Discrimination Act 1975 took effect,[20] the Canadian Supreme Court did not impose any such historical limits. Aboriginal title had been recognised in various ways since the Royal Proclamation of 1763, and in most of Canada, title had been transferred from aboriginal peoples to the Crown via treaties. Therefore, although aboriginal title claims were and are made over various lands not covered by treaty (‘comprehensive claims’), aboriginal land-related claims were often more focussed upon claims that historic treaty rights and promises had not been respected (‘specific claims’), rather than on establishing the existence of aboriginal title.

This was not the case in British Columbia (BC), where, with the exception of some treaties largely predating the province’s formation in 1871, the provincial government had acted as if terra nullius applied, and had not secured any land title from British Columbian First Nations via treaty or purchase. From 1973 until 1990, the BC Government denied that the Calder case had any application in BC, even while the Nisga’a people within BC (who had brought the Calder case) began negotiating with the Federal Government in 1976, and their rights were given constitutional backing in the Constitution Act 1982.[21] BC’s intransigence meant that First Nations protests and direct action escalated, while the potential legal uncertainty undermined investment in primary industries in BC.[22]

In the late 1980s, the BC Government began to reverse course, and in 1990 established, with the Canadian Federal Government and representatives of First Nations, the British Columbia Claims Task Force to report on steps forward. The Task Force recommended that the BC Government join negotiations with the Nisga’a, and should establish a British Columbia Treaty Commission, a tripartite body appointed by British Columbia, Canada and the First Nations, funded to ensure that First Nations could negotiate on an equal footing with governments, to coordinate negotiated settlements via treaty of the 30 or more estimated claims likely to occur within BC.[23] BC also commenced negotiations with the Nisga’a, signing the Nisga’a Final Agreement in 1999.

Form of indigenous representation	Two Commissioners (of 5) are elected by the First Nations Summit Chiefs in Assembly. The Chief Commissioner is appointed by all parties. Currently the Chief Commissioner and the BC Provincial Government Commissioner are also members of BC First Nations.
Appointments	The Chief Commissioner is appointed to a 3-year term by agreement of the Principals (First Nations, federal and provincial governments). The First Nations Summit elects 2 Commissioners and the federal and provincial governments appoint one each. If the Principals cannot agree on a Chief Commissioner, the 4 remaining Commissioners unanimously agree to appoint one of them to act as Chief Commissioner.
Authority/powers	The Commission is a facilitator of negotiation. Its role is to ‘ensure that the process is fair and impartial, that all parties have sufficient resources to do the job, and that the parties work effectively to reach agreements’. As such the only power it possesses is to allocate funding to support negotiations and to report on the progress and outcomes.
Functions	The Commission states that it is an independent body that advocates for and facilitates the recognition and protection of indigenous rights and title, including the implementation of UNDRIP and recommendations of the Truth and Reconciliation Commission of Canada, through the negotiation of modern treaties, agreements and other constructive arrangements. Its 3 main roles are to be the independent facilitator of negotiations amongst First Nations in BC, the Government of Canada, and the Government of British Columbia; allocate negotiation support funding to enable First Nation participation in the negotiations; and provide public information and education about treaty negotiations.
Establishment	The Commission was established via the tripartite British Columbia Treaty Commission Agreement in 1992, after all parties accepted the recommendations of The Report of the British Columbia Claims Task Force in 1991.
Constitutional recognition	Section 35(1) of the Constitution Act 1982 states that ‘The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed.’ This section gives historic and modern treaties, as well as native title (‘aboriginal rights’), the protection of constitutional law. Section 25 of the Constitution Act 1982 requires that other constitutional rights and freedoms are not interpreted in ways which abrogate or derogate from aboriginal rights and freedoms. Canada does not have codified, indigenous-specific representation in or to its Parliament, but section 35.1 of the Constitution Act 1982 requires that ‘representatives of the aboriginal peoples of Canada’ must be consulted before any alteration to sections 25 or 35. ‘Treaties’ includes what are also known as Modern Treaties or Comprehensive Land Claims Agreements.
International instruments	Canada voted against UNDRIP in 2007. In 2010, Canada accepted UNDRIP as an ‘aspirational’ document. In 2016, Canada committed to ‘implementing’ UNDRIP and in June 2021 passed the United Nations Declaration on the Rights of Indigenous Peoples Act 2021. Canada has not ratified ILO Conventions 169 or 107.

Independent provincial treaty commissions also exist in Manitoba and Saskatchewan.

Federal Canadian Government: comprehensive and specific land claims processes

Canada also has treaty-tribunal (or similar) bodies which operate at a national level, to resolve claims against the Federal government of either native title or treaty violation.

After the Supreme Court’s decision in Calder, which recognised the existence of aboriginal or native title, the Federal Government instituted ‘comprehensive land claims’ and ‘specific claims’ processes.

The Canadian Federal Government states:

Comprehensive land claims deal with the unfinished business of treaty-making in Canada. These claims generally arise in areas of Canada where Aboriginal land rights have not been dealt with by treaty or through other legal means. In these areas, forward-looking agreements (also called "modern treaties") are negotiated between the Aboriginal group, Canada and the province or territory.

These treaties are implemented through legislation and remain the most comprehensive way of addressing Aboriginal rights and title. Achieving more treaties remains a critical piece in achieving lasting certainty and true reconciliation. This includes certainty about the ownership, use and management of land and resources for all parties. Some treaties have also included provisions relating to Aboriginal self-government. The rights set out in the treaties receive constitutional protection.

Since 1973, Canada and its negotiation partners have signed 26 comprehensive land claims and four self-government agreements. Of the 26 signed agreements, 18 included provisions related to self-government.

These settlements have provided:

• Aboriginal ownership over 600,000 km² of land (almost the size of Manitoba)
• Capital transfers of over $3.2 billion
• Protection of traditional ways of life
• Access to resource development opportunities
• Participation in land and resources management decisions
• Certainty with respect to Aboriginal land rights in approximately 40 per cent of Canada's land mass
• Associated self-government rights and political recognition

The largest and best-known Comprehensive Land Claim Agreement is the Nunavut Land Claims Agreement, reached in 1993 with the Tunggavik Federation of Nunavut. It covers approximately 18,000 Inuit people of the eastern Arctic and included transfer of over 350,000 km² of land, financial compensation of CA$1.17 billion over 15 years as compensation for Crown lands that are not Inuit property, rights to share in resource royalties in some areas, hunting rights, and a role in land and environment management. The Final Agreement divided the Northwest Territories and created the new territory of Nunavut in 1999 (discussed below).

In addition to the comprehensive land claims are ‘specific claims’. The specific claims process addresses claims arising from non-fulfilment of Indian treaties or alleged improper administration of lands by the government and has its own specialised tribunal body.

The first such body, the Indian Claims Commission (ICC), was established in 1991 as a temporary body to inquire and report on disputes between First Nations and the Government of Canada involving claims based on treaties, agreement or other administrative actions. The Commission deals with disputes not accepted for negotiation under the Specific Claims Policy. The ICC was in existence from 1991 to 2009, after which it was replaced by the Specific Claims Tribunal (SCT).

The SCT hears monetary damage claims made by a First Nation against the Crown regarding the administration of land and other First Nation assets, and about the fulfillment of Indian treaties that have not been accepted for negotiation, or that have not been resolved through a negotiated settlement within a specified time frame. The SCT can mandate compensation for such claims to a maximum value of $150 million.

Further reading and additional references

• Alice Petrie, Treaties and self-determination: case studies from international jurisdictions, Research note, 8, (Melbourne: Parliamentary Library and Information Service, Parliament of Victoria, June 2018).

Comparative study of historical and modern treaty and similar processes in the USA, Canada, New Zealand, Victoria (Australia), and the Nordic countries.

• Paul Okalik, ‘Canada: From Native Title to Nunavut’, address to the National Press Club, Canberra, 15 August 2001.

Paul Okalik, the first Premier of Nunavut, provides an overview of the agreement by which Nunavut was created in an address to the Australian National Press Club.

Minority representation within parliaments

A large number of legislatures include legislated or constitutional provisions that provide for indigenous or ethnic minority representation in parliament, through methods such as:

• Reserved seats (examples include Taiwan, New Zealand, Slovenia and India)
• Candidate quotas (examples include Singapore and Vietnam)
• Exemption from electoral thresholds (examples include Serbia)
• ‘Best loser’ system (examples include Mauritius) and
• Over-representation of regions (examples include Canada).

As the Electoral Knowledge Network webpage states:[24]

There are also many ways to enhance the representation of minorities and communal groups. Again, electoral systems which use reasonably large district magnitudes encourage parties to nominate candidates from minorities on the grounds that balanced tickets will increase their electoral chances. A very low threshold, or the complete elimination of a formal threshold, in PR [proportional representation] systems can also facilitate the representation of hitherto under-represented or unrepresented groups by encouraging the formation of parties specifically representing them. In plurality/majority systems in particular, seats are sometimes set aside in the legislature for minorities and communal groups.

Reserved seats can be used to ensure the representation of specific minority groups in the legislature. Seats are reserved for identifiable ethnic or religious minorities in countries as diverse as Colombia (‘black communities’), Croatia (the Hungarian, Italian, Czech, Slovak, Ruthenian, Ukrainian, German, and Austrian minorities), India (the scheduled tribes and castes), Jordan (Christians and Circassians), Niger (Tuareg), New Zealand (Maori), Pakistan (non-Muslim minorities), Palestine (Christians and Samaritans), Samoa (non-indigenous minorities), Slovenia (Hungarians and Italians), Taiwan (the ‘aboriginal’ community) and Iraq (Christians, Sabeans, Shabaks and Yizidis). Representatives from these reserved seats are usually elected in much the same manner as other representatives, but are sometimes elected only by members of the particular minority community designated in the electoral law. This requires a communal roll (a roll of those voters who, by belonging to that particular community, are eligible to vote in that election). While it is often deemed to be a normative good to represent small communities of interest, it has also been argued that it is a better strategy to design structures which give rise to a representative legislature without overt manipulation of the electoral law or legal obligation, and that quota seats may breed resentment on the part of majority populations and exacerbate mistrust between various cultural groups.

Instead of formally reserved seats, regions can be over-represented to facilitate the increased representation of geographically concentrated groups. In the UK, Scotland and Wales have more MPs in the British House of Commons than they would be entitled to if population size alone were the only criterion. The same is true in the mountainous regions of Nepal.

Another possibility is the best loser system used in Mauritius, whereby some of the highest-polling losing candidates from a particular ethnic group are awarded seats in the legislature in order to balance overall ethnic representation.

Electoral boundaries can also be manipulated to promote the representation of particular groups. The Voting Rights Act in the United States has in the past allowed the government to draw weirdly shaped districts with the sole purpose of creating majority Black, Latino, or Asian-American districts; this might be called ‘affirmative gerrymandering’. However, the manipulation of any electoral system to promote or protect minority representation is rarely uncontroversial.

The agora portal for parliamentary development also outlines different methods for a national parliament to ensure the participation of minorities and indigenous peoples in the legislative process.

Reserved seats in parliament

Reserved seats are a type of quota, designed to reserve a certain portion of electorates or seats in parliament for specific groups (including indigenous peoples). They exist in many of the world’s parliaments. As discussed above, reserved seats are enacted by a variety of methods including seats with restricted voter rolls, requirements that grouped tickets include candidates with the reserved characteristic, provisions to appoint members if the election does not return a minimum number of representatives with the desired characteristic, or exemption from minimum vote quota requirements in proportional representation systems for candidates or parties with particular characteristics.

The Inter-Parliamentary Union’s (IPU) Parline database states that of the 190 countries which have or had parliaments listed,[25] approximately one quarter (48, or 25.3%) had reserved seats in a lower or unicameral chamber. Of the 78 countries with upper houses, a similar proportion (19, or 24.4%) had reserved seats in their upper house. Parline does not consider minimum quota exemptions, geographic over-representation, or group ticket requirements to be ‘reserved seats’, so if these are included, proportions become higher.

The most common form of reserved seating is a requirement that a minimum number of seats, or electoral candidates, will be held by women. Another common form is an ‘expatriate electorate’, or reservation of a number of seats for expatriate citizens. However, provisions for some form of reserved seats for other groups,[26] including indigenous peoples and other ethnic or religious minorities, are also found in dozens of parliaments worldwide. A 2005 study found 32 parliamentary systems worldwide had reserved seats, quotas, or other special electoral mechanisms, for ethnic, linguistic, geographic, religious or cultural minorities.[27] We have updated this study (Appendix B) and found 44 states or state-like entities[28] which currently have some form of reserved seating for minorities. In a 2010 IPU survey of parliaments, 32 (40%) of the 79 responding parliaments indicated that ‘some sort of special electoral measure’ was in place to provide for minority representation.[29] Slovenia was the only country identified in which these seats had extra or unusual powers beyond those granted to all representatives, as its minority representatives can veto legislation specific to the peoples represented.

Below are some more detailed examples of the current use of reserved seats in parliaments for indigenous peoples and minority groups.

Taiwan

Form of indigenous representation	There are reserved seats (specific indigenous electorates) in Taiwan’s Legislature, the Legislative Yuan, for indigenous peoples of Taiwan.
Appointments	Of the 113 seats in the unicameral Taiwanese Legislature, there are 73 geographical constituencies, 34 party seats and 6 indigenous seats. The 6 reserved indigenous seats are split evenly between 2 separate indigenous constituencies through a single non-transferable vote electoral system. Indigenous candidates can also stand for election through the 34 party seats. Indigenous voters are eligible to vote for candidates in the indigenous seats and party seats but not the geographical constituencies.
Authority/powers	Indigenous parliamentarians have equal rights and responsibilities in the Legislative Yuan with fellow elected parliamentarians.
Functions	Legislators in the Taiwanese (unicameral) Parliament, with the same role as other parliamentarians.
Establishment	Reserved seats were first introduced in 1972 through the Taiwanese Constitution. Two nationwide districts have been part of the reserved seat system since 1980.
Constitutional recognition	Reserved seats were introduced in 1972 through the Taiwanese Constitution.

 

Further reading and additional references

• Netina Tan and Cassandra Preece, ‘Ethnic Quotas, Political Representation and Equity in Asia Pacific’, Representation 58, no. 3 (2022): 347–371.

Evaluation of quota mechanisms (reserved seats/candidate quotas) of 11 countries in the Asia-Pacific, with a focus on Taiwan, Singapore and Pakistan.

• Cassandra Preece, ‘Taiwan must find ways to enhance Indigenous representation’, The Conversation, 3 April 2020.

Includes a very brief summary of ‘problems with the current system’ and possible solutions to improve the current system in Taiwan.

• Kevin Hsu and Lucien Wei Hickman, ‘How does Taiwan’s parliamentary election work’, Ketagalan Media, 26 December 2015.

Provides a concise explanation of the Taiwanese electoral system (including a summarised graphic), and the 3 different types of seats, including the indigenous seats.

• Daniel Davies, ‘Reserved for whom? The shifting dynamics of Indigenous voting behaviour in Southern Taiwan’, Taiwan Insight, 31 October 2019.
• Kharis Templeman, ‘When Do Electoral Quotas Advance Indigenous Representation?: Evidence from the Taiwanese Legislature’, Ethnopolitics 17, no. 5 (2018): 461–484.

New Zealand: Māori reserved seats

Form of indigenous representation	There are reserved seats (indigenous electorates) for Māori in New Zealand’s national parliament.
Appointments	There are 72 electorates in New Zealand – 65 general electorate seats and 7 Māori seats – and an additional 48 members are selected from party lists (120 members in total). Candidates standing for election in the Māori electorates are elected the same way as candidates in the general electorate seats – through New Zealand’s mixed member proportional electoral system. Candidates for the 7 reserved seats are elected by constituents on the Māori roll (an electoral roll separate to the general electoral roll). Māori people can choose which roll to be listed on in the 3 months before an election. The number of Māori reserved seats is based on the number of people on the Māori roll. Māori voters need to choose to enrol on either the Māori electoral roll or the general electoral roll. There are no restrictions on Māori candidates standing for election in general seats.
Authority/powers	Māori representatives have equal rights and responsibilities with fellow elected parliamentarians in New Zealand’s unicameral national parliament. Māori has been recognised as an official language of Parliament since 1985 and thus Māori (and other) representatives can speak in Māori in parliamentary proceedings.
Functions	Legislators in New Zealand’s unicameral Parliament, with the same role as other parliamentarians.
Establishment	Various forms of reserved seats have existed since the introduction of the Māori Representation Act in 1867.
Constitutional recognition	New Zealand does not have a single or entrenched constitution. The Constitution Act 1986 (NZ) does not mention Māori, but the Treaty of Waitangi or ‘the principles of the Treaty of Waitangi’ are usually considered part of New Zealand’s constitutional framework. The Māori reserved seats are not part of the Treaty of Waitangi but, according to Brian Lloyd (below), are seen as symbolising agreement with the principles of the Treaty.
International instruments	New Zealand voted against UNDRIP in 2007, but reversed its stance in 2010. In 2019 New Zealand began developing a Declaration Plan to implement UNDRIP. New Zealand has not ratified ILO Conventions 169 or 107.

 

Due to the high proportion of Māori people in the New Zealand population, the number of representatives who are Māori in the New Zealand Parliament typically exceeds these reserved seats, as Māori people also stand for election in general seats.

Further reading and additional references

• Rawiri Taonui, ‘Story: Ngā māngai – Māori representation’, Te Ara – The Encyclopedia of New Zealand, 15 July 2016.

Includes sections on Māori representation in Parliament, and the effect of, and controversy over, Māori seats.

• ‘Māori and the vote’, New Zealand History (Ministry for Culture and Heritage), 20 December 2018.

Provides a very brief overview of the establishment of the Māori seats in the 19th century, and key changes in the 20th century.

Although New Zealand's 1852 constitution was theoretically colour-blind, very few Māori were able to vote in early elections because they owned their lands communally [and property ownership was required for suffrage]. The wars of the 1860s fuelled debate about Māori representation, and in 1867 four parliamentary seats were set up specifically for Māori. As a result of this legislation, Māori men achieved universal suffrage 12 years before European men …

Before the first MMP [mixed member proportional] election in 1996 the number of Māori seats was increased, for the first time in their 129-year history, to five. Two more were added in 2002, and the total has remained at seven.

The separate electoral system for Māori was essentially an 1860s solution to a supposedly temporary 'problem'. Its appropriateness and effectiveness have been the subject of debate ever since. 

• John Wilson, The Origins of the Māori Seats, Research paper, (Wellington: New Zealand Parliamentary Library, 2009).

Provides a history and overview of how the Māori seats were established.

• Brian Lloyd, Dedicated Indigenous representation in the Australian Parliament, Research paper, 23, 2008–09, (Canberra: Parliamentary Library, 18 March 2009).

Also includes a detailed analysis of the history, symbolism and function of New Zealand’s reserved Māori seats, and some analysis of Maine and Norway as alternative models.

• Royal Commission on the Electoral System, Report of the Royal Commission on the Electoral System: Towards a Better Democracy, 11 December 1986.

Recommended New Zealand adopt the mixed member proportional voting system. See Chapter 3 ‘Maori representation’ and Appendix B ’A History of Maori Representation in Parliament’ for historical overviews.

• Andrew Geddis, ‘Dedicated Indigenous representation in New Zealand’s Parliament’, Public Law Review 25 (2014): 240–244.

Slovenia

Form of minority representation	There are 2 reserved seats in the National Assembly (lower chamber) for one deputy of the Italian community and one deputy of the Hungarian community.
Appointment	The 2 deputies are elected by majority vote of their communities.
Authority/powers	The 2 deputies act as regular deputies (members of the National Assembly). In addition, paragraph 5 of Article 64 of the Slovenian Constitution states: ‘Laws, regulations, and other general acts that concern the exercise of the constitutionally provided rights and the position of the national communities exclusively, may not be adopted without the consent of representatives of these national communities’. This guarantees the representatives of the 2 national communities the right of veto in matters that directly concern the communities. The Rules of Procedure of the National Assembly stipulate that consent is given if the 2 deputies of the national communities vote for the law in question. Other parts of Article 64 guarantee bilingual, self-governmental and other rights to these communities. Article 65 guarantees protection of Romany rights in Slovenia by law, but does not grant any form of special representation, self-government or other particular rights. According to the Minority Rights Group International, the laws providing for the protection of Romany rights have yet to be passed.
Functions	Legislators in the National Assembly, the lower house of Slovenia, fulfill the same role as other parliamentarians, plus their ability to veto legislation relating to their communities.
Establishment	Recognition of Italian and Hungarian ethnic minority rights in particular geographical areas bordering on those states stemmed from negotiations over the determination of borders between the former Yugoslavia, Italy and Hungary in the post WWII period, including the temporary creation of the Free Territory of Trieste under direct UN governorship between 1945 and 1954. Official bilingualism and other rights were offered to these minorities by Yugoslavia and subsequently guaranteed under the 1975 Treaty of Osimo and other instruments. When Slovenia became an independent state after the dissolution of Yugoslavia, it inherited these arrangements, which were codified into the constitution.
Constitutional recognition	The positions and rights of the 2 national communities are codified in the Constitution of Slovenia. Article 80 of the Slovenian Constitution states ‘One deputy of the Italian and one deputy of the Hungarian national communities shall always be elected to the National Assembly’.
International instruments	Slovenia voted for UNDRIP in 2007. Slovenia has not ratified ILO Conventions 169 or 107.

The Italian and Hungarian minorities in Slovenia would not necessarily be considered ‘indigenous peoples’ under the UN working definition. They are included in this paper as a point of comparison, because of their representatives’ apparently unique possession of a veto power over laws exclusively relating to their communities.

Further reading and additional references

• Oleh Protsyk, The representation of minorities and indigenous peoples in parliament: a global overview (Inter-Parliamentary Union and United Nations Development Programme, 2010).

Discusses Slovenia’s minority representation mechanisms.

India

There are further provisions in the Indian Constitution related to state and local parliaments, and other positions (reservation of jobs and reservation of positions in educational institutions). However, this section focuses solely on the Indian national parliament (specifically the lower house, the Lok Sabha).

Form of indigenous representation	There are reserved seats for ‘Scheduled Tribes’ (also known collectively as Adivasis or indigenous peoples of India) and ‘Scheduled Castes’ (also known as Dalits) in India’s Parliament.
Appointments	Candidates standing for election in the reserved seats are elected by all voters within the constituency.
Authority/powers	Representatives have equal rights and responsibilities in India’s Lower House (Lok Sabha) with fellow elected parliamentarians.
Functions	Legislators in the Lower House of India’s bicameral national Parliament, with the same role as other parliamentarians.
Establishment	Reserved seats were introduced through the Constitution of India in 1950 (Article 330: Reservation of seats for Scheduled Castes and Scheduled Tribes in the Lok Sabha).
Constitutional recognition	The reserved seats are provided for by the Constitution of India Article 330: Reservation of seats for Scheduled Castes and Scheduled Tribes in the Lok Sabha.
International instruments	India voted for UNDRIP in 2007. India ratified ILO Convention 107 on 29 September 1958.

Further reading and additional references

• Samhitha Reddy, ‘Legislative Commentary – Article 330, Constitution Of India, 1950’, Legal Service India E-Journal.

Background
Article 330, inter alia, provided for reservation of seats for the scheduled castes in the same proportion to the total number of seats allotted to the State or Union Territory in the House of the people as the population of the scheduled castes in the State or Union territory or part thereof, as the case may be, in respect of which, seats are so reserved, bears to the total population of the State or Union Territory …

Article 330 of the Constitution of India has been enacted and amended over time in the interests of social justice as enshrined in the Preamble to the Constitution of India as well as to protect the interests of Schedule Castes and Schedule Tribes by reserving seats for them in the Parliament and State Legislatures of Assam and other North-Eastern States of India.

• ‘India: Reservation of Number of Seats for Minorities’, ACE: The Electoral Knowledge Network, 2012.
• Jagannath Ambagudia, ‘Scheduled Tribes, Reserved Constituencies and Political Reservation in India’, Journal of Social Inclusion Studies 5, no. 1 (June 2019): 44–58.

Democratic rights have been extended to tribes by granting equal citizenship status. Nonetheless, the framers of the Indian constitution realised that considering the history of social discrimination and marginalisation, a mere extension of citizenship rights to the indigenous people would not ensure their adequate representation in the political sphere. Hence, institutional mechanisms were developed to ensure their adequate representation in democratic politics. Consequently, the Indian state adopted the ‘quota system’ for the STs [Scheduled Tribes] in the form of reserved seats in politics in proportion to their numerical strength to the total population as per the latest preceding census. According to Article 330, seats shall be reserved for the STs in the lower house of the Indian parliament (Lok Sabha). Further, under Article 332 of the Indian constitution, seats are reserved for STs in the legislative assembly of every state. The number of seats reserved shall be based on the principle of proportionality …

The provision of political reservation, however, does not restrict the tribal people from contesting elections from unreserved seats. For instance, 136 tribal candidates contested the 2009 general elections from unreserved constituencies out of which six even emerged victorious (Government of India, 2009). Similarly, six tribal candidates were elected to the Lok Sabha from unreserved constituencies in the 2014 general election (Government of India, 2014). Electoral reservation, however, has not been extended to the upper house of the parliament (Rajya Sabha) and state assemblies (legislative councils) …

Electoral reservation is an ad-hoc arrangement that ensures adequate representation of tribes in formal political institutions. Initially, it was adopted for 10 years with the rationale that the time frame would help in implementing preferential considerations more effectively, thereby making it easier to evaluate the impact after 10 years. However, in reality, the tenure of political reservation has continuously been extended since then. It is worthwhile to mention that the time limit was applied to politics only (Article 334) and was not meant for other spheres of reservation such as government employment and education. This can perhaps be explained that once political reservation ceases to exist, the parliament may amend the constitution easily and strike down the provision of reservation …

Hope and despair of tribal communities have further been aggravated by ineffective performance of tribal political representatives in democratic politics due to various reasons. Despair is also supplemented by the relatively restricted political choices of ST candidates to contest from reserved constituencies located outside their states. In recent times, it has, however, been observed that candidates have been contesting elections in unreserved constituencies located outside their states. This is primarily done in the form of contesting from two parliamentary constituencies under Section 33 of the Representation of People Act, 1951, one is located in their own state and other is outside the state. The relatively restricted political choice of ST candidates can perhaps be explained on the ground that the ST lists are state-specific lists and STs cannot claim the status outside their states.

Candidate quotas and other electoral mechanisms

Instead of reserving seats, candidate quota systems require that a certain proportion of candidates running for election belong to a minority. They are commoner in multi-member electoral systems.

Singapore

Form of indigenous representation	Singapore’s Group Representative Constituency system requires that parties present a team of 4 to 6 representatives for election in one of the 15 group constituencies, all of whom are elected to represent that constituency if the seat is won. In each team, at least one member must be member of the Malay, Indian, or other minority group for their candidacy to be valid.
Appointments	Ethnic candidate quotas are set through a Group Representative Constituencies, or multi-member constituencies system.
Authority/powers	Representatives have equal rights and responsibilities with fellow elected parliamentarians in Singapore’s national parliament.
Functions	Legislators in Singapore’s unicameral Parliament, with the same role as other parliamentarians.
Establishment	The Group Representation Constituency system was introduced in 1988.
Constitutional recognition	The Group Representation Constituency system was introduced on 11 January 1988 by way of an amendment to the Constitution and the Parliamentary Elections Act.
International instruments	Singapore voted for UNDRIP in 2007. Singapore has not ratified ILO Conventions 169 or 107.

 

Further reading and additional references

• Netina Tan, ‘Party Quotas and Rising Women Politicians in Singapore’, Politics & Gender 11, no. 1 (May 2015): 196–207.

In 1988, an ethnic quota was introduced that altered Singapore’s electoral system to include both a single-member and multi-seat plurality party bloc vote system. In the multimember or group representative constituency (GRC), a voter has to cast her vote for a team of four to six candidates with at least one ethnic minority member. The winning party with a plurality of votes takes all the seats in the GRC. Now, there are 12 single-member constituencies (SMCs) and 15 GRCs of four to six members, making up a total 87 elected seats in Parliament.

• ‘Explainer: Singapore’s Electoral System’, New Naratif, 26 March 2020.

The whole point of the GRC system was to ensure ethnic minority representation by requiring candidates to team up with an ethnic minority candidate and contest the election together and then to run the constituency together. If it were otherwise, then an unscrupulous but popular political party could cobble together enough teams to contest all the GRCs, and then have all but one MP resign from each of these GRCs. Theoretically, five members of a six-member GRC can resign their seats and leave the remaining member as the sole representative for his constituency.

• Priscilla Chia, ‘Revisiting the GRC system’s “guarantee” of minority representation’, Academia SG, 1 June 2021.

One, the GRC Scheme may not adequately tackle the intent for minority representation given that there is no corresponding mechanism to guarantee minority representation until the next election.

Two, the electorate, especially the younger voters demand fairness and want a level playing field for all political parties. The GRC scheme privileges the incumbent and may be perceived as tilting the playing field in its favour. Moreover, even when the opposition was able to gain two GRCs in the past decade, GE2020 provides further evidence of how difficult it remains for the opposition to win a GRC, where even a 28 percentage point swing against the PAP in West Coast GRC could not dislodge a PAP team led by two ministers.

Finally, the outrage over a potential candidate, Ivan Lim is an example of how it is increasingly clear that voters do not want to give candidates a complimentary entry pass. Voters want each candidate to prove their worth at the ballot box, and justifiably so. The GRC scheme, however, forces voters to vote for candidates they may find undesirable in order that other candidates in the same team (whom they like) get voted into Parliament.

Another dilemma thrown up by the GRC system is that when the incumbent fields individual or multiple political officeholders in a GRC, having to vote that entire GRC team in or lose office-holders — even a presumed future Prime Minister (as in East Coast GRC in GE2020) — acts as a further constraint on voter choice.

• Tsai-Wei Sun, ‘Governing Singapore: The Group Representation Constituency (GRC) system and its effect on inclusiveness and electoral participation’, Asian Education and Development Studies 4, no. 3 (13 July 2015): 282–298.

Findings of the study into the impact of the GRC system include:

The GRC system seems to be friendlier and fairer toward ethnic minorities than the traditional system. The GRC system also encourages political parties to be ethnically more inclusive. On the other hand, however, the GRC system has negative effects on opposition parties. A government cannot be called “accountable” if it lacks fair competition and sufficient popular participation.

Vietnam

Form of indigenous representation	There are quotas for election candidates for the 54 recognised ethnic groups in Vietnam. Communist Party of Vietnam policy is that the National Assembly be a body representative of all sections of Vietnamese society, including ethnic group representation in appropriate proportions.
Appointments	At least 18% of candidates selected by the ‘Vietnam Fatherland Front’, an organisation which selects and vets candidates for election, must belong to an ethnic minority.
Authority/powers	Representatives form part of Vietnam’s one-party state legislature, but are rarely appointed to senior government positions.
Functions	Members of Vietnam’s 500-member unicameral parliament, the National Assembly.
Establishment	Quotas have been in place since at least 2014. The latest Constitution was adopted 28 November 2013, effective 1 January 2014. Minority candidate quotas were also used before this date.
Constitutional recognition	The latest Constitution, incorporating candidate quotas, was adopted 28 November 2013.
International instruments	Vietnam voted in favour of UNDRIP in 2007. Vietnam has not ratified ILO Conventions 169 or 107.

 

Further reading and additional references

• Son Nguyen, ‘The Odds Against Your Favor: How Does the National Assembly Election in Vietnam Work?’, The Vietnamese, 21 March 2021.

Provides a basic overview/explanation of the candidate selection system.

• ‘Freedom in the World 2022: Vietnam’, Freedom House, 2022.

Elections to the 499-seat Quoc Hoi [usually 500 MPs, one was expelled], or the National Assembly, are tightly controlled by the CPV [Communist Party of Vietnam], which won 485 seats in the May 2021 largely rubber-stamp elections. Candidates who were technically independent, but were in fact vetted by the CPV, took the other 14 seats. Fewer independent candidates stood in the 2021 elections than in the 2016 poll …

The electoral laws and framework ensure that the CPV, the only legally recognized party, dominates every election. The party controls all electoral bodies and vets all candidates, resulting in the disqualification of those who are genuinely independent …

Although members of ethnic minority groups are nominally represented within the CPV, they are rarely allowed to rise to senior positions, and the CPV leadership’s dominance prevents effective advocacy on issues affecting minority populations. Vietnam has enacted policies and strategies aimed at boosting women’s political participation, but in practice the interests of women are poorly represented in government.

• Sonia Palmieri, Representation from the top: Ethnic minorities in the National Assembly of Viet Nam (Inter-Parliamentary Unions and United Nations Development Programme, 2010).

Candidate lists for election are compiled by the Viet Nam Fatherland Front. Nominations and endorsements are sought from workplaces and local communities. ‘Outstanding candidates,’ defined as party members or those with a university degree such as doctors and teachers are highly encouraged to stand for election. Once this approval is given, a candidate must present him or herself before a selection panel, to present his or her agenda for the community they hope to represent …

In compiling candidate lists, the Viet Nam Fatherland Front and the Communist Party aim to mirror the composition of the population. It is, in fact, party policy that the National Assembly be a body representative of all sections of Vietnamese society. To ensure this representativeness, a numerical target of ethnic minorities is projected …

Bearing this target in mind, a two-way process unfolds. Both the Fatherland Front and ethnic minority associations search for suitable candidates for those provinces where there are many ethnic minorities. In the ethnically diverse province of Lac Son, the provincial electoral council will invite nominations from the minority associations for ‘outstanding ethnic minority deputies’. The Fatherland Front will also nominate ethnic minority candidates. Thus the nominations process happens from both the top and the bottom. A further boost is provided to ethnic minority candidates in the form of electoral training. This is organised by the National Assembly’s Council on Ethnic Minorities.

Serbia: Exemption from electoral threshold

Form of indigenous representation	Parties representing ethnic minorities are exempted from the electoral threshold (currently set at 3%). The Serbian Parliament currently includes 7 representatives from ethnic minorities.
Appointments	Members are elected under a proportional representation system for a single, nation-wide constituency.
Authority/powers	Minority members have equal rights and responsibilities with fellow elected parliamentarians in Serbia’s unicameral national parliament.
Functions	Members are legislators in Serbia’s 250-seat National Assembly.
Establishment	Current arrangements have been in place since 2004.
Constitutional recognition	The Serbian Constitution, adopted in 2006, entrenches protection of human and minority rights, non-discrimination, and that special measures intended to achieve full equality are not considered discrimination. It also provides that ‘In the National Assembly, equality and representation of different genders and members of national minorities shall be provided, in accordance with Law’.
International instruments	Serbia voted in favour of UNDRIP in 2007. Serbia has not ratified ILO Conventions 169 or 107. Serbia has also signed agreements with the EU and neighbouring countries regarding the protection of minorities.

 

Further reading and additional references

• ‘Serbia: Narodna skupstina (National Assembly)’, Inter-Parliamentary Union.

Proportional: Members are elected by a single nationwide constituency using a list proportional representation system. The minimum threshold to win a seat is 5 per cent [now set at 3%] of the total number of votes. However, there is no minimum threshold for political parties representing coalitions of ethnic minorities. Parliamentary seats are allocated in proportion to the number of votes won by each list, using the highest quotient system (d'Hondt method). For allocation of the final seat, if the quotient calculated for two or more electoral lists is the same, the seat shall be allocated to the list having received the largest number of votes overall.

• ‘Freedom in the World 2022: Serbia’, Freedom House, 2022.

In February 2020, the parliament enacted electoral amendments that reduced the threshold to win seats from five percent to three and introduced a 40 percent gender quota for party lists. The parliament’s decision to lower the threshold weeks before the parliamentary elections were originally scheduled was regarded as an attempt to weaken an opposition boycott. …

The country’s electoral threshold for parliamentary representation does not apply to parties representing ethnic minorities. Groups centered on the ethnic Albanian, Bosniak, and Hungarian communities won 19 parliamentary seats in the June 2020 elections. Nevertheless, ethnic minorities have a muted voice in Serbian politics in practice.

• Dejan Bursać and Bojan Kiculović, ‘Electoral rules and minority representation in Serbian parliamentary elections’, in eds. V. Tabara, E. Strautiu and S. Scaunas, Political Science, International Relations and Security Studies (Sibiu: Lucian Blaga University, 2015), 34–44.

Provides an overview of the Serbian electoral system, with a focus on minority representation. Including its history and effectiveness.

Frequent changes of electoral rules have been the hallmark of Serbian democracy since the reintroduction of multiparty system in 1990. Serbia experimented with different electoral systems: from majority system, to different variations of proportional representation, and finally – a single constituency proportional system with 5% threshold [now set at 3%].

• Nikola Burazer, ‘Serbian electoral reform: Improved national minority representation or tactical move against boycott?’, European Western Balkans, 13 April 2020.

Discusses the changes to the electoral threshold, including for national minorities.

Mauritius: ‘Best loser’ system

Form of indigenous representation	Mauritius has a ‘best loser’ system designed to ensure all minority groups are represented in the parliament.
Appointments	Once 62 members are elected, up to 8 of the highest-polling losing candidates from a particular ethnic group are awarded seats in the legislature in order to ensure all minority groups are represented. The ‘best loser’ system requires the mandatory classification of people into 4 communities: Hindu, Muslim, Sino-Mauritian and General Population.
Authority/powers	Members have equal rights and responsibilities with fellow elected parliamentarians in Mauritius’ national parliament.
Functions	Members are legislators in Mauritius’ unicameral parliament: the National Assembly.
Establishment	The system has been in place since 1968, provided for in the Mauritian Constitution.
Constitutional recognition	The ‘best loser’ system is provided for in the 1968 Constitution.
International instruments	Mauritius voted in favour of UNDRIP in 2007. Mauritius has not ratified ILO Conventions 169 or 107.

 

Further reading and additional references

• Amar Mahadew, ‘Reforming Mauritius’s electoral system: More gender and less communal representation?’, ConstitutionNet, 25 February 2019.

Mauritius uses the first-past-the-post electoral system through 20 constituencies from which three candidates receiving the highest number of votes are elected to the unicameral National Assembly, making it an initial 60 directly elected members. Two seats are reserved for candidates from Rodrigues, which is part of the Republic of Mauritius. In addition, a maximum of eight members are chosen on the basis of the Best Loser System (BLS), which is intended to correct possible imbalances in community parliamentary representation. The BLS enables the allocation of seats to candidates on the basis of their community/religion. The Electoral Supervisory Commission proposes a list of best losers, that is candidates with the highest number of votes but who have come fourth in their constituency. It then retains up to eight considering fair and adequate representation of all the communities in Mauritius.

While the current system has served the country through 11 general elections since independence in 1968 and has been the reason for the relative political stability of the country, it has started to show certain imperfections. These include disparity between votes polled and seats won by parties, the under-representation of women in the National Assembly and the categorization of Mauritians into four groups or communities (Hindu, Muslim, Sino-Mauritian and General Population, mainly referring to people of African descent) for the purpose of seat allocations through the BLS.

• Yonatan Fessha and Nora Ho Tu Nam, ‘Is it time to let go? The Best Loser System in Mauritius’, Afrika Focus 28, no. 1 (May 2015).

Includes a background, operation, and implications of the ‘best loser’ system.

Adopted before independence was granted, to allow for the representation of all communities in parliament, BLS [best loser system] has undoubtedly fulfilled its role. This unique and complex system has ensured the consistent presence of all communities at the highest political level, thereby reassuring minority groups as to their importance and inclusion into the Mauritian political system. It is in this sense that BLS has been hailed as one essential ingredient that has helped to build a relatively stable and united multi-ethnic Mauritius…

The aim of BLS is to avoid the under-representation of minority communities, ensuring that the proportion of members elected to the National Assembly is not less than the community’s percentage of the population.

Geographically-based minority representation

Canada: Territory and Quebecois seats

Form of indigenous and minority representation	Under section 51(2) of the Constitution Act 1867, the territories of Nunavut, Northwest Territories and Yukon receive a seat each in the House of Commons, although their populations are less than half of an electoral quota for a seat in a province. In both Nunavut and the Northwest Territories, Aboriginal peoples are a majority of the population, and thus they have frequently elected indigenous representatives. The territory of Nunavut was specifically created to allow greater self-government to the Inuit (Inuk) indigenous population, under the Nunavut Land Claims Agreement (or Nunavut Treaty). In addition, a ‘grandfather clause’ (section 51(1)(2) of the Constitution Act 1867) provides that no province’s number of representatives in the House of Commons shall fall below the number it had in 1985. Among other effects, in the most recent redistribution this granted French-speaking Quebec an extra 7 representatives, thus making French-speaking populations relatively over-represented.
Appointments	Territory representatives are elected in general elections.
Authority/powers	Territory representatives have equal rights and responsibilities with fellow elected parliamentarians.
Functions	Territory representatives are legislators in Canada’s House of Commons.
Establishment	The Territory of Nunavut was created as part of the Nunavut Land Claims Agreement, reached in 1993 with the Tunggavik Federation of Nunavut. The Final Agreement divided the Northwest Territories and created the new territory of Nunavut in 1999.
Constitutional recognition	Section 35(1) of the Constitution Act 1982 states that ‘The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed’. This section gives historic and modern treaties, as well as native title (‘aboriginal rights’), the protection of constitutional law. Section 25 of the Constitution Act 1982 requires that other constitutional rights and freedoms are not interpreted in ways which abrogate or derogate from aboriginal rights and freedoms. Canada does not have codified, indigenous-specific representation in or to its Parliament, but section 35.1 of the Constitution Act 1982 requires that ‘representatives of the aboriginal peoples of Canada’ must be consulted before any alteration to sections 25 or 35.
International instruments	Canada voted against UNDRIP in 2007. In 2010, Canada accepted UNDRIP as an ‘aspirational’ document. In 2016, Canada committed to ‘implementing’ UNDRIP and in June 2021 passed the United Nations Declaration on the Rights of Indigenous Peoples Act 2021. Canada has not ratified ILO Conventions 169 or 107.

 

Further reading and additional references

• Paul Okalik, ‘From Native Title to Nunavut’, address to the National Press Club, Canberra, 15 August 2001.
• Other countries with arrangements similar to Canada include the Comarcas Indigenas (Indigenous Provinces) in Panama,[30] and the devolved self-government, and overrepresentation in the UK Parliament, of Wales and Scotland (see Appendixes B, C and D).

Further reading on reserved seats

• Lisa Handley, ‘Drawing Electoral Districts to Promote Minority Representation’, Representation 58, no. 3 (2022): 373–389.
• Meaghan Williams and Robert Schertzer, ‘Is Indigeneity like Ethnicity? Theorizing and Assessing Models of Indigenous Political Representation’, Canadian Journal of Political Science 52 (2019): 677–696.
• Sarah Maddison, ‘White Parliament, Black Politics: The Dilemmas of Indigenous Parliamentary Representation’, Australian Journal of Political Science 45, no. 4 (December 2010): 663–680.
• Institute for International Law and Human Rights (IILHR), IILHR Comparative Review of Minority Representation in Electoral Legislation, (IILHR, June 2009).
• Mona Lena Krook and Diana Z. O’Brien, ‘The Politics of Group Representation: Quotas for Women and Minorities Worldwide’, Comparative Politics (April 2010): 254–272.

 

Appendix A: Previous Aboriginal and Torres Strait Islander bodies; Reserved seats in Australia; Australia and ILO 169

Previous Aboriginal and Torres Strait Islander representative and advisory bodies

Previous elected representative national Aboriginal and Torres Strait Islander bodies supported by the Commonwealth Government are the National Aboriginal Consultative Committee (NACC) (1973–77), the National Aboriginal Conference (NAC) (1977–85), the Aboriginal and Torres Strait Islander Commission (ATSIC) (1989–2005) and the National Congress of Australia’s First Peoples (NCAFP) (2009–19). The Torres Strait Regional Authority (TSRA) has continuously represented Torres Strait Islanders since being fully separated from ATSIC in 1997.

Previous government-appointed advisory bodies include the National Conference of Aboriginal and Torres Strait Islander Advisory Councillors (1972), the National Indigenous Council (2005–07), and the Prime Minister’s Indigenous Advisory Council (2013–c. 2019).

National Conference of Aboriginal and Torres Strait Islander Advisory Councillors: 1972

In response to the creation of the Aboriginal Tent Embassy and other Aboriginal rights campaigns, the McMahon Government created a National Conference of 66 appointed Aboriginal and Torres Strait Islander Advisory Councillors which it stated would provide a ‘truly representative expression of Aboriginal views’.[31] However, the National Conference embarrassed the McMahon Government by granting the Tent Embassy members voting rights within the Conference and passing resolutions calling for land rights, Aboriginal representation in federal and state parliaments, and for the Tent Embassy to be re-established on the lawn of Parliament House.[32] This body does not appear to have met after 1972.

National Aboriginal Consultative Committee (NACC): 1973–77

To support the aim of Aboriginal self-determination, in 1973 the Whitlam Government created Australia’s first elected Indigenous representative body, the National Aboriginal Consultative Committee (NACC), to provide advice on Aboriginal policy.[33] More than 27,000 Indigenous people voted to elect 41 members of the NACC.[34] Notwithstanding Whitlam’s achievements in Indigenous affairs, the NACC would clash frequently with the Government over the slow pace of land rights legislation and its desire to have some executive power rather than a purely advisory role.[35]

After the change of government in 1975, the Fraser Government commissioned a review of the NACC, which found that the NACC had not been an effective mechanism for providing advice to the minister, or for consulting with Indigenous people. It was abolished in May 1977, being replaced with the National Aboriginal Conference (NAC).[36] As the NACC was only created administratively, no parliamentary action was needed for it to be abolished.

National Aboriginal Conference (NAC): 1977–85

The elected 35 member National Aboriginal Conference (NAC) was established by the Fraser Government in November 1977 to provide a forum for the expression of Aboriginal views.[37] Like the NACC, it was created as an administrated program of the Department of Aboriginal Affairs rather than by legislation.

The NAC was chiefly responsible for raising the idea of a treaty or Makarrata in Australia, particularly amongst Aboriginal and Torres Strait Islander people. In response, the Fraser Government created a Senate Standing Committee on Constitutional and Legal Affairs inquiry ‘on the feasibility of a compact, or ‘Makarrata’, between the Commonwealth and Aboriginal people’. The NAC made a submission stating that Aboriginal and Torres Strait Islander people had maintained their sovereignty and nationhood and should be treated as equal in political status with the Commonwealth if a Makarrata was to be pursued. The submission concluded:

We are aware of Australian ambition to be one nation, one people. However, this cannot be achieved if our people are denied justice in accordance with international opinion relating to a people’s right of self-determination …[38]

The Senate Committee’s report Two Hundred Years Later, released in 1983, rejected the word ‘treaty’ as unrealistic given Indigenous peoples’ lack of international standing, but recommended that a compact or Makarrata could be created based upon a new constitutional section 105B, granting a power for the Commonwealth to enter into a compact with representatives of the Aboriginal people (existing section 105A provides for financial agreements between the Commonwealth and the States).[39] The Committee also recommended that the NAC be made an independent statutory body with increased funding and membership.[40]

The NAC also campaigned for a treaty at an international level. At the United Nations, the World Council of Indigenous Peoples, and the World Assembly of First Nations, the NAC put forward suggestions for a Makarrata including:

• land rights over former reserves and national parks and recognition of traditional rights to hunt, fish and gather on Crown lands
• a National Aboriginal Bank, tax exemptions and payment of 5% of Australia’s gross national product for 195 years as reparations
• one seat per state in the House of Representatives and the Senate to be reserved for an Aboriginal or Torres Strait Islander person
• self-government of Aboriginal communities and respect for Aboriginal customary law
• return of artefacts and artworks and control over research on Aboriginal people and
• dedicated Aboriginal schools, medical centres and legal aid.[41]

In 1985, the Hawke Government abolished the NAC, which had denounced the Government’s failure to support a treaty or national land rights legislation, after commissioning a critical review of its performance and governance.[42] As the NAC was not legislated, it could be abolished by the Minister without parliamentary action.

Aboriginal and Torres Strait Islander Commission (ATSIC): 1989–2005

The Hawke Government passed the Aboriginal and Torres Strait Islander Commission Act 1989 to create the Aboriginal and Torres Strait Islander Commission (ATSIC), a statutory authority to both represent, and deliver services to, Aboriginal and Torres Strait Islander people.[43] Unlike the previous NACC and NAC which had been advisory and representative only, ATSIC was intended to combine representative and executive roles by taking over the responsibilities of the former Department of Aboriginal Affairs. ATSIC’s creation was opposed by the Howard-led Opposition, with Mr Howard stating that ‘the ATSIC legislation strikes at the heart of the unity of the Australian people’ and ‘if the Government wants to divide Australian against Australian, if it wants to create a black nation within the Australian nation, it should go ahead with its Aboriginal and Torres Strait Islander Commission (ATSIC) legislation and its treaty’.[44] Numerous amendments were made to ATSIC’s legislation before it was passed, including creating a dedicated Office of Evaluation and Audit within ATSIC.[45]

While ATSIC placed many services in Aboriginal hands, it was frequently caught between 2 masters, as its executive council was elected by Aboriginal and Torres Strait Islander voters but it was staffed by public servants who reported to, and were responsible to, the Minister for Aboriginal and Torres Strait Islander Affairs.[46] Furthermore, ATSIC was frequently blamed for broader failings in Aboriginal and Torres Strait Islander policy, such as poor health outcomes, over which it had little or no control. Over 85% of ATSIC’s budget was non-discretionary funding for delivering programs set by the Commonwealth Government, principally the Community Development Employment Projects (CDEP) program and the Community Housing and Infrastructure Program. Indigenous health budgets and services were for the most part controlled by the Department of Health.[47] Perceptions of problems stemming from ATSIC’s dual role substantially influenced design proposals for successor Indigenous representative bodies.[48]

When Mr Howard became Prime Minister in 1996, ATSIC’s discretionary funding was substantially cut and several reviews and audits of the organisation were launched. In 2003, the Government separated ATSIC’s service delivery roles into a new organisation, Aboriginal and Torres Strait Islander Services (ATSIS). In 2003, a government review recommended ATSIC be restructured, and that ATSIS and ATSIC be reunited with a renewed focus on regional bodies and regional governance.[49] Instead, following allegations of criminal acts and corruption by ATSIC’s CEO Geoff Clark and Deputy Chair Ray Robinson being aired in the media,[50] and then ALP leader Mark Latham announcing that the ALP would abolish ATSIC if it won government, the Howard Government announced in 2004 that ATSIC and ATSIS would be abolished.[51] Legislation abolishing ATSIC and transferring some of its functions to 2 new organisations, Indigenous Business Australia and the Indigenous Land Corporation, was passed with ALP support in March 2005, with the ATSIC regional councils continuing in an advisory role until 30 June 2005.

The Torres Strait Regional Authority, which had previously been the Torres Strait ATSIC regional council, was separated from ATSIC in 1997 and survived the abolition of ATSIC. It continues to this day to provide local and other government services and a representative structure for the Torres Strait.

National Indigenous Council (NIC): 2005–07

In 2005, Prime Minister Howard appointed a hand-picked National Indigenous Council (NIC) to provide advice to the Government.[52] The NIC was chaired by Aboriginal magistrate Sue Gordon. It reportedly clashed with Minister for Indigenous Affairs Mal Brough over failure to take its advice, and was perceived as lacking a mandate.[53] This body was dissolved by the Rudd Government in early 2008.[54]

National Congress of Australia’s First Peoples (NCAFP): 2009–19

The National Congress of Australia’s First Peoples (NCAFP) was founded in November 2009, after a design process led by Tom Calma, as a stand-alone corporation to function as the representative body for Aboriginal and Torres Strait Islander people and organisations.[55] It was created as a corporation rather than a government body, so that it could not be dissolved by government fiat. In 2010, it announced its members and appointed its first national executive.[56]

However, under political and budget pressure to cut costs following the 2007 response to the global financial crisis, the Rudd and Gillard Governments rejected the NCAFP’s request to create a permanent endowment to fund its ongoing operation, instead funding the NCAFP on a year-on-year basis through the Budget process. ^[57] This left the NCAFP potentially vulnerable to future funding cuts.

After the 2013 election, the Abbott Government appointed a new Prime Minister’s Indigenous Advisory Council (PMIAC). The National Commission of Audit subsequently criticised the National Congress of Australia’s First Peoples as ‘duplicat[ing] existing Indigenous representative advisory bodies’, apparently referring to the PMIAC.[58] The NCAFP was subsequently defunded in the 2014–15 Budget. While this did not abolish the NCAFP (which had been set up as a non-government corporation, in order to prevent it being abolished), it meant that the NCAFP had insufficient funds to operate effectively, and was thus limited its representational ability.[59]

On 13 June 2019, the NCAFP, which had been largely unfunded by government since the 2013 election and was relying on paid subscriptions from Aboriginal and Torres Strait Islander members and organisations, went into voluntary administration.[60] Its co-chairs were made redundant and it ceased operating in July 2019.[61]

Prime Minister’s Indigenous Advisory Council (PMIAC): 2013­–c2019

After the 2013 election, the Abbott Government appointed a new Prime Minister’s Indigenous Advisory Council, which was initially chaired by Warren Mundine, formerly a member of the National Indigenous Council. This body was never formally abolished, but it appears to have ceased operating at some point after the 2019 election.[62] Its last meeting appears to have been on 13 February 2019.

 

Proposals for reserved seats in Australia

The possibility of reserving seats in the Australian House of Representatives or Senate for Aboriginal and Torres Strait Islander people has been occasionally raised since William Cooper’s 1937 petition to King George V called for a reserved seat or seats based on the Māori model. More recently, reserved seats (or equivalent measures, for example creating an Aboriginal state or territory) have at times been advocated by Palawa leader Michael Mansell, former Prime Minister Tony Abbott, and Senators Jacquie Lambie and Lidia Thorpe.[63]

The majority, but not unanimous, legal opinion since 1937 has been that outside the Northern Territory (or other territories), reserving seats for Aboriginal and Torres Strait Islander people in the House of Representatives would require a constitutional amendment, and in the Senate would be likely to require a constitutional amendment. The articles below discuss the issues, and also discuss the possibility of reserved seats at a state level (in Queensland and New South Wales).

• Armen Aghazarian, ‘Reserved Indigenous Seats in the Commonwealth Parliament: Potential Models and Constitutional Issues’, Constitutional Critique (blog), 14 December 2015.
• Glynn Evans and Lisa Hill, ‘The Electoral and Political Implications of Reserved Seats for Indigenous Australians’, Australian Journal of Political Science 47, no. 3 (September 2012): 491–505.
• Brian Lloyd, Dedicated Indigenous representation in the Australian Parliament, Research paper series, 2008–09, 23, (Canberra: Parliamentary Library, March 2009).

This paper also includes a detailed analysis of the history, symbolism and function of New Zealand’s reserved Māori seats, and some analysis of Maine and Norway as alternative models.

• John Chesterman, ‘‘Chosen By The People’?: How Federal Parliamentary Seats Might Be Reserved For Indigenous Australians Without Changing The Constitution’, Federal Law Review 34 (2006): 261–285.
• Karen Struthers, ‘Hands on Parliament: Indigenous People’s participation in Queensland’s democratic process’, Indigenous Law Bulletin 5, no. 27 (September 2003).
• NSW Standing Committee on Social Issues, Enhancing Aboriginal Political Representation: Inquiry into Dedicated Seats in the New South Wales Parliament, (Sydney: Standing Committee on Social Issues, November 1998):

Chapter 2, section 2.5: Calls for Dedicated Seats Since the 1930s

Chapter 6: The Arguments For and Against Dedicated Seats

Chapter 7: The Mechanics of Dedicated Seats

Chapter 8: Other Ways to Improve Aboriginal Representation

Chapter 9: Dedicated Aboriginal Seats: Legal and Constitutional Issues

Conclusions.

Australia and ILO Convention 169

International Labour Organisation (ILO) Convention 169, the Indigenous and Tribal Peoples Convention (1989) is less well-known than the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).[64] However, as a Convention, it has a higher status in international law, and more defined requirements of signatory states, than a Declaration.[65] ILO Convention 169’s Articles cover issues particularly significant to Aboriginal and Torres Strait Islander peoples, including consultation on legislation through representative institutions (Article 2), criminal law and incarceration (Articles 8–10), land rights (Articles 13–19), access to social security (Article 24) and health services (Article 25), use of indigenous languages in schools (Article 28), and historical truth-telling (Article 31). Australia has not ratified this Convention.

Australia’s engagement with the ILO Conventions relating to indigenous peoples might be said to have begun in 1958, when the Federal Council for Aboriginal Advancement (later the Federal Council for the Advancement of Aborigines and Torres Strait Islanders) called on Australia to sign the (now closed) predecessor to Convention 169, ILO Convention 107, the Indigenous and Tribal Populations Convention (1957).[66] When ILO Convention 169 was first presented in 1989, Australian delegates to the ILO voted in favour of it, and ATSIC subsequently recommended to the Hawke and Keating governments that Australia become a signatory (as did former Prime Minister Gough Whitlam).[67] The Hawke Government expressed support but did not proceed to sign the Convention.[68] Active Australian attention to ILO Convention 169 then waned after the abolition of ATSIC, and international legal attention shifted to the preparation and negotiation of UNDRIP. The Howard Government voted against UNDRIP in 2007 (as did the governments of Canada, New Zealand and the United States), but the Rudd Government reversed this stance and signalled in-principle agreement to UNDRIP in 2009.[69]

In 2011, the UN Human Rights Council’s Universal Periodic Review (UPR) first review of human rights in Australia recommended that Australia sign the Convention.[70] The Gillard Government then re-engaged with ILO Convention 169, and discussed ratification with the states between 2011 and 2013.[71] Ratification was also supported by the then-extant National Congress of Australia’s First Peoples.[72] After the 2013 election, the incoming Abbott Government discontinued this process.[73]

Ratification of ILO Convention 169 was again recommended by the UN Human Rights Council’s second UPR of human rights in Australia in 2016 (recommendation 57).[74] The Turnbull Government responded that the recommendation (and hence the Convention) would not be considered further at that time.[75]

 

 

Appendix B: Reserved seats for minorities in parliaments

This appendix provides an update as of 2022 to Reynolds’ 2005 study ‘Reserved Seats in National Legislatures: A Research Note’.[76] This list is chiefly based on updating Reynolds’ study with reference to Parline, the database of the Inter-Parliamentary Union, with additional data from other sources located in the course of writing (cited if the source is not Parline). It does not include seats reserved on the basis of gender, age, disability or other statuses not related to traditional, ethnic, religious, indigenous or national minority status. It is not guaranteed to be exhaustive.

Forty-four states or state-like entities with reserved seats or other electoral mechanisms for minority representation were identified. Some countries are listed more than once according to Reynolds’ classification of the mechanism:

• reserved seats, lower house
• reserved seats, upper house
• electoral systems (e.g. lowering of electoral quotas in multi-member electorates)
• power-sharing (post-conflict) arrangements (usually involving proportions of seats allocated to each group).
• overrepresentation of minority regions.

A second table provides a list of the basis on which seats are reserved.

In addition, whether countries supported UNDRIP (in 2007 or since) or have ratified ILO Conventions 169 or 107 is tabulated.

Country	Details	Size of legislature	Reserved %	Ratified ILO 169 or ILO 107	UNDRIP support
Mechanism: Reserved seats, lower house
Armenia	4 seats reserved for minorities: Yezidi Assyrian Kurdish Russian	105	3.8	No	Yes
Bolivia	7 seats reserved for indigenous. On 7 November 2007, Law No. 376033 was enacted, which attributed binding force to the whole UNDRIP as law of the country.	130	5.3	ILO 169 since 11 December 1991	Yes
Burundi	3 seats reserved for indigenous minority (Twa); other seats must observe a 60% Hutu, 40% Tutsi split.	123	2.4	No	Abstained
China	A seat is reserved for at least one deputy from each of the 55 recognised ethnic minorities	3,000	1.8	No	Yes
Colombia	1 seat reserved for an indigenous representative; 2 for minorities	187	1.6	ILO 169 since 7 August 1991	Abstained; Supported 2009
Croatia	8 seats reserved for minorities: Serbian minority (3 seats) Czech and Slovak minorities (1 seat) Italian minority (1 seat) Hungarian minority (1 seat) Austrian, Bulgarian, German, Polish, Roma, Romanian, Ruthenian, Russian, Turkish, Ukrainian, Vallachian and Jewish minorities (1 seat) Albanian, Bosnian, Montenegro, Macedonian and Slovenian minorities (1 seat)	151	5.3	No	Yes
Ethiopia	20 seats reserved for minorities under constitutional article 54 (3)	547	3.6	No	Non-voting
India	133 seats reserved for specified groups: Scheduled Castes (84 seats) Scheduled Tribes (47 seats) Anglo-Indian community (2 seats)	545	24.4	ILO 107 since 29 September 1958	Yes
Iran	5 seats reserved for religious minorities: Zoroastrians (1 seat) Jewish population (1 seat) Assyrian and Chaldean Christians (1 seat) Armenian Christians in the north of the country (1 seat) Armenian Christians in the south of the country (1 seat)	290	1.7	No	Yes
Iraq	9 seats reserved for minority groups: Christian (5 seats) Fayli Kurds (1 seat) Sabean (1 seat) Shabak (1seat) Yizidi (1 seat)	329	2.7	ILO 107 since 16 July 1986	Yes
Jordan	12 seats reserved for minorities: Christians (9 seats) Chechens or Circassians (3 seats)	130	9.2	No	Yes
Kazakhstan	9 members of the Mazhilis (Lower House) of the Parliament of Kazakhstan are deputies appointed by the Assembly of People of Kazakhstan, an institution designed to represent all ethnic groups of Kazakhstan. They do not vote on legislation but enjoy other privileges of house members, including speaking on and proposing legislation.	107	8.4, non-voting	-	Y
Kiribati	2 seats are reserved for the minority Banaban community	45	4.4	No	Non-voting
New Zealand	7 Māori electorates	120	5.8	No	No (reversed 2010)
Niger	8 reserved seats for special constituencies reserved for national minorities	171	4.1	No	Yes
Pakistan	10 seats reserved for minorities	342	2.9	ILO 107 since 15 February 1960	Yes
Philippines	20% of the Congressional seats (currently 55 of 253) are elected by a party-list proportional representation system designed to represent ‘marginalised and underrepresented’ groups (originally defined as ‘including labor, peasant, urban poor, indigenous cultural, women, youth, and other such sectors as may be defined by law (except the religious sector)’)	253	20	-	Y
Romania	One seat in the lower chamber of parliament is reserved for each minority group that has failed to obtain representation through the regular electoral procedure. There are 19 legally established national minorities; the Czech and Slovak minorities are represented by one person, so a maximum of 18 seats can therefore be allocated to national minorities.	330	5.4	No	Non-voting
Sierra Leone	12 Paramount Chiefs (a traditional hereditary authority established in local government under British colonial rule) are elected from the 12 electoral districts to sit in Parliament.	124	9.7	No	Yes
Slovenia	2 seats reserved for minorities: Italian (1 seat) Hungarian (1 seat)	90	2.2, veto power	No	Yes
Taiwan	6 seats reserved for indigenous representatives	113	5.3	N/A	N/A
Tonga	9 seats are reserved for nobles	30	30.0	No	NV
Venezuela	3 seats reserved for indigenous representatives	167	1.8	ILO 169 since 22 May 2002	Yes
Mechanism: Reserved seats, upper house
Belgium	10 senators – 6 Dutch-speaking and 4 French-speaking – are co-opted by the senators of the federal entities based on the election results for the House of Representatives.	60	16.6	ILO 107 since 19 November 1958	Yes
Colombia	2 seats reserved for indigenous representatives	108	1.8	ILO 169 since 7 August 1991	Abstained; Supported 2009
Lesotho	22 seats reserved for traditional chiefs	33	66.6	No	Yes
Rwanda	Article 80(2) of the Constitution states that of the 26 senators, there are to be: ‘eight (8) Senators appointed by the President of the Republic, giving particular consideration to the principles of national unity, the representation of historically marginalised groups, and any other national interests’	26	30.8	No	Non-voting
United Kingdom	90 hereditary peers representing descendants of the Norman aristocracy, and 25 archbishops and bishops representing the Anglican church	800	13.1	No	Yes
Mechanism: Electoral systems
Austria[77]	Exemption from 4% electoral threshold quota for parties representing ethnic minorities	183		No	Yes
Denmark[78]	Exemption from electoral threshold quota for parties representing German minorities	179		ILO 169 since 22 February 1996	Yes
Germany[79]	Exemption from 5% electoral threshold quota for parties representing national minorities: Danes, Sorbs, Sinti and Roma	736		ILO 169 since 23 June 2021	Yes
Hungary[80]	The electoral threshold quota is set at 0.26% for parties representing ethnic minorities (for the first seat only) rather than 5%	199		No	Yes
Mauritius	8 seats reserved for 4 national communities under the ‘best loser’ balancing system: Hindu Muslim Sino-Mauritian General Population	70	11.4	No	Non-voting
Nepal[81]	Candidate quotas for the following groups: Dalit (13.8%) Adivsai and Janajati (28.7%) Khas Arya (31.2%) Madhesi (15.3%) Tharu (6.6%) Muslim (4.4%)	275	100	ILO 169 since 14 September 2007	Yes
Poland[82]	Exemption from 5% electoral threshold quota for parties representing national minorities	460		No	Yes
Serbia[83]	Exemption from 3% electoral threshold quota for parties representing ethnic minorities.	250		No	Yes
Singapore[84]	At least one of member of each Group Representation Constituency must be a member of the Malay, Indian or another minority community of Singapore	104		No	Yes
Vietnam[85]	18% of candidates selected to contest elections must be from ethnic minorities	500		No	Yes
Mechanism: Power-sharing/post-conflict settlements
Bosnia and Herzegovina	28 members are elected from the Federation of Bosnia and Herzegovina, 14 are elected from the Republika Srpska	42	33.3	No	Yes
Cyprus	56 members are elected by the Greek-Cypriot community while 24 are nominally elected by the Turkish-Cypriot community; these seats have been unfilled since 1964. In addition, the 3 recognised minority religious groups (Latins, Maronites, and Armenians) each elect a non-voting observer member.	80 + 3	3.6 if vacant seats not counted; non-voting	No	Yes
Kosovo	20 seats are reserved for national minorities: Serbs (10 seats) Romani, Ashkali and Egyptians (4 seats) Bosniaks (3 seats) Turks (2 seats) Gorans (1 seat)	120	16.7	No	N/A
Lebanon	Seats are equally divided between Christian and Muslim members.	128	50 + 50 (half each)	No	Yes
Mechanism: Overrepresentation of defined ethnic/national regions
Canada	A ‘grandfather clause’ (section 51(1)(2) of the Constitution Act 1867) provides that no province’s number of representatives in the House of Commons shall fall below the number it had in 1985. Among other effects, in the most recent redistribution this granted French-speaking Quebec an extra 7 members.[86] Under section 51(2) of the Constitution Act 1867, the territories of Nunavut, Northwest Territories and Yukon all receive a seat in the House of Commons, although their populations are less than half of an electoral quota. In both Nunavut and the Northwest Territories, Aboriginal peoples are a majority of the population.	338		No	No (reversed 2010)
Denmark	2 seats reserved for the Faroe Islands; 2 seats reserved for Greenland (each have 0.7% of the population); approximately 90% of Greenland’s population are indigenous Inuit people	179	2.2	ILO 169 since 22 February 1996	Yes
Finland	1 seat reserved for the Aaland Islands	200	0.5	No	Yes
Tanzania	5 members elected by the Zanzibar House of Representatives from among its members	393	1.3	No	Yes
United Kingdom	House of Commons constituency sizes are smaller in Scotland and Wales than in England, leading to numerical overrepresentation of those nations. 533 constituencies averaging 73,000 in England 59 constituencies averaging 68,300 in Scotland 40 constituencies averaging 57,700 in Wales 18 constituencies averaging 74,100 in Northern Ireland	650		No	Yes

 

Bases of identity for reserved seats

Indigenous status/ethnicity	Language/nation	Religion/tradition	Geography
Armenia	Belgium	Cyprus	Canada
Austria	Bosnia	Iran	Denmark
Bolivia	Croatia	Iraq	Finland
Burundi	Cyprus	Jordan	Kiribati
China	Denmark	Lebanon	Tanzania
Colombia	Germany	Lesotho	UK
Denmark	Hungary	Pakistan
Ethiopia	Kosovo	Sierra Leone
India	Poland	Tanzania
Kazakhstan	Serbia	Tonga
Mauritius	Slovenia	UK
Nepal	UK
New Zealand
Niger
Romania
Rwanda
Singapore
Taiwan
Venezuela
Vietnam

Appendix C: Minority recognition in Commonwealth countries

This table summarises whether Commonwealth countries have recognised indigenous peoples or minority groups through their constitutions, laws, accession to international conventions and declarations, or other means. It provides some comment but does not systematically assess whether the countries have populations which fit the international working definition of indigenous peoples. In many countries, the original population still forms the majority, but the Constitution may include mechanisms for representation or protection of customary authorities, customary lands, etc. This has been noted for some countries but not systematically assessed for all countries listed. Countries are listed alphabetically by continent/global area.

In addition, whether countries supported UNDRIP (in 2007 or since) or have ratified ILO Conventions 169 or 107 is tabulated.

Country	Indigenous/minority recognition	Comments	Ratified ILO 169 or ILO 107	UNDRIP support
Africa
Botswana	The Constitution of Botswana does not recognise any specific ethnic groups as indigenous to the country, maintaining instead that all citizens of the country are indigenous. The Ntlo ya Dikgosi (‘House of Chiefs’) is established by section 77(1) of the Constitution.	The Ntlo ya Dikgosi (Tswana for ‘House of Chiefs’) in Botswana is an advisory body to the country’s parliament, consisting of 8 hereditary chiefs, 22 members elected by traditional authorities, and 5 members appointed by the President. While the house is an advisory body only, all bills affecting tribal organisation and property, customary law, and the administration of customary courts go through the house before being discussed in the National Assembly. Members must also be consulted when the Constitution is being reviewed or amended.	No	Yes
Cameroon	The Constitution of the Republic of Cameroon uses the terms ‘indigenous’ and ‘minorities’ in its preamble, but it is not clear to whom this refers.	An official study aimed at specifying criteria for identifying indigenous peoples in Cameroon was underway in 2015. The process has been criticised for its lack of involvement with the communities themselves.	No	Yes
Eswatini, Kingdom of Swaziland	The Constitution of Eswatini does recognise the existence of any indigenous peoples in the country.	Eswatini’s primary population are the indigenous Swazi.	No	Yes
Gabon	Gabon does not recognise the existence of any indigenous peoples in the country in its Constitution.		No	Yes
Gambia	The Gambia’s Constitution refers to the preservation of indigenous knowledge and culture.	The section on language in the National Assembly states: The business of the National Assembly shall be conducted in the English language or in any other language indigenous to The Gambia. Where a member chooses to conduct a business of the National Assembly in a language indigenous to The Gambia, the translation of that language may only be made in the English language and Gambian sign language. The National Assembly shall encourage and facilitate the progressive realisation of the use of languages indigenous to The Gambia in the conduct of the business of the Assembly within five years following the next general election after the coming into force of this Constitution. For the purposes of this section, ‘language indigenous to The Gambia’ includes the Gambian sign language.	No	Non-voting
Ghana	Ghana does not recognise the existence of any indigenous peoples in the country in its Constitution.		No	Yes
Kenya	Article 97(1)(a) of the Constitution provides for 12 members nominated by parliamentary political parties according to their proportion of members of The National Assembly to represent special interests, including youth, persons with disabilities and workers; article 100 of the Constitution provides that Parliament shall enact legislation to promote the representation in Parliament of women; persons with disabilities; youth; ethnic and other minorities; and marginalized communities. At present there do not seem to be ethnic/indigenous minority reserved seats, so Kenya has not been included in Appendix B. Kenya does not recognise any specific indigenous population in the Constitution, but the Constitution recognises the need to preserve indigenous languages, culture and knowledge.	One category of ‘marginalised community’ under Kenya’s Constitution is ‘an indigenous community that has retained and maintained a traditional lifestyle and livelihood based on a hunter or gatherer economy’. Article 100 requires the Parliament to take special measures to ensure that ‘marginalised communities’ and ‘ethnic groups’ are represented in Parliament. The 2016 Community Land Act operationalised Article 63 of the Constitution regarding land rights and included provisions for protections of indigenous people’s land.	No	Abstained. Subsequently revised constitution to incorporate elements of UNDRIP.[87]
Lesotho	The Constitution provides for two thirds (22/33) of Lesotho’s Senate to be the hereditary tribal chiefs of the various tribes of Lesotho. These Chiefs also constitute the College of Chiefs, who determine royal succession.	Lesotho is almost entirely comprised of the Basotho people, who are the indigenous people of Lesotho. All land is formally vested in the Basotho Nation.	No	Yes
Malawi	Malawi does not recognise the existence of any indigenous peoples in the country in its Constitution.		ILO 107 since 22 March 1965	Yes
Mauritius	The Constitution of Mauritius does not recognise indigenous peoples.	Mauritius does not have an indigenous population. Its parliamentary system features a ‘best loser’ system designed to ensure that all minority ethnic groups are represented in the parliament.	No	Yes
Mozambique	Mozambique does not recognise the existence of any indigenous peoples in the country in its Constitution.		No	Yes
Namibia	The Constitution of Namibia references Apartheid and the need to implement affirmative action measures, but does not specify or recognise any particular indigenous or minority group.	Article 102(5) of the Namibian Constitution provides for a Council of Traditional Leaders ‘in order to advise the President on the control and utilization of communal land and on all such other matters as may be referred to it by the President for advice’.	No	Yes
Nigeria	The Constitution of Nigeria includes a requirement for the President to appoint ‘at least one Minister from each State, who shall be an indigene of such State’.	Nigeria has more indigenous tribes than States, but the constitutional requirement is a form of recognition of diverse indigenous representation in Government. There are ongoing debates as to which tribes qualify as indigenous in Nigeria.	No	Abstained
Rwanda	The constitution states that there are to be ‘eight (8) Senators appointed by the President of the Republic, giving particular consideration to the principles of national unity, the representation of historically marginalised groups, and any other national interests.’ The recent history of ethnic-based fighting, oppression and genocide is reflected in the 2003 Constitution of Rwanda, with specific Articles seeking protections and reparations for the genocide against the Tutsi. There are no specific references or recognitions of one indigenous group over another beyond those related to the genocide.		No	Non-voting
Seychelles	The Constitution of the Seychelles does not recognise indigenous peoples.	Seychelles does not have an indigenous population, as it was uninhabited prior to the mid-18th century.	No	Non-voting
Sierra Leone	The Constitution of Sierra Leone refers to the promotion of learning indigenous languages as an educational objective. Seats are reserved for ‘paramount chiefs’, a traditional authority position.	12 Paramount Chiefs (a traditional hereditary authority established in local government under British colonial rule) are elected from the 12 electoral districts to sit in Parliament.	No	Yes
South Africa	South Africa’s Constitution recognises Indigenous languages of various peoples and customary and traditional law and leadership. The Constitution also provides: 212(2) To deal with matters relating to traditional leadership, the role of traditional leaders, customary law and the customs of communities observing a system of customary law- national or provincial legislation may provide for the establishment of houses of traditional leaders; and national legislation may establish a council of traditional leaders.	In South Africa, the Traditional Leadership and Governance Framework Act 2003 provides that any parliamentary bill pertaining to the customary law or customs of traditional communities must, before it is introduced and passed by the House of Parliament, be referred by the Secretary of Parliament to the National House of Traditional Leaders for its comments. The National House has a time limit on providing any such comments.	No	Yes
Tanzania, United Republic	Tanzania does not recognise the existence of any indigenous peoples in the country in its Constitution, and there is no specific national policy or legislation on indigenous peoples.	The offshore islands of Zanzibar have seats reserved in the Tanzanian parliament.	No	Yes
Togo	The Constitution of Togo does not refer to indigenous peoples or minorities but guarantees equal rights regardless of ‘ethnic or regional origin’.	Article 143 states: The Togolese State recognizes the traditional chiefdom, guardian of use and customs. The designation and the enthronement of the traditional chief obeys the use and customs of the locality.	No	Non-voting
Uganda	The Constitution of Uganda states in Article 36: Protection of minorities: Minorities have a right to participate in decision-making processes and their views and interests shall be taken into account in the making of national plans and programmes. Minorities in this instance are not defined, nor is a process set out for their views and interests being considered.		No	Non-voting
Zambia	The Constitution of Zambia includes recognition of traditional and customary law and rights, denoted in Part XII: Chieftaincy and House of Chiefs.	Article 169 of the Constitution states: 5. The functions of the House of Chiefs are to a. consider and discuss a Bill relating to custom or tradition referred to it by the President, before the Bill is introduced into the National Assembly; b. initiate, discuss and make recommendations to the National Assembly regarding socio-economic development in the Province; c. initiate, discuss and decide on matters relating to customary law and practice; d. initiate, discuss and make recommendations to a local authority regarding the welfare of communities in a local authority; e. make proposals on areas in customary law that require codification; f. advise the Government on traditional and customary matters; and g. perform other functions as prescribed.	No	Yes
Asia
Bangladesh	A 2011 amendment to the Constitution of Bangladesh acknowledged different ethnic identities alongside the majority Bengali population: Article 23A states ‘The State shall take steps to protect and develop the unique local culture and tradition of the tribes, minor races, ethnic sects and communities’.	The human rights group Minority Rights states that ‘The government recognizes 50 ethnic groups but not does recognize the concept of indigenous peoples’.	ILO 107 since 22 June 1972	Abstained
Brunei Darussalam	Brunei does not recognise the existence of any indigenous peoples in the country in its Constitution.	According to a US State Department report in 2021: Some indigenous persons were stateless. Indigenous lands were not specifically demarcated, and there were no designated representatives for indigenous groups in the Legislative Council or other government entities. Indigenous persons generally had minimal participation in decisions affecting their lands, cultures, and traditions or in the exploitation of energy, minerals, timber, or other natural resources on and under indigenous lands. (p. 18)	No	Yes
India	Reserved seats in the Lok Sabha (lower house of the national parliament) were introduced through the Constitution of India in 1950 (Article 330: Reservation of seats for Scheduled Castes and Scheduled Tribes in the Lok Sabha).	Seats are reserved in the lower house for ‘Scheduled Tribes’ (also known collectively as Adivasis or indigenous peoples of India) and ‘Scheduled Castes’ (also known as Dalits).	ILO 107 since 29 September 1958	Yes
Malaysia	The Federal Constitution of Malaysia guarantees government representation for Malaysia’s indigenous people, the native people of Peninsula Malaysia, Sabah and Sarawak, referred to as Orang Asal or Orang Asli.	The Constitution also allows for affirmative action for the Orang Asli in Peninsular Malaysia and natives of Sabah and Sarawak, including the establishment of quotas for entry into the civil service, the attainment of public scholarships and education and the reservation of land.	No	Yes
Maldives	The Maldives does not recognise the existence of any indigenous peoples in the country in its Constitution.		No	Yes
Pakistan	The Constitution of Pakistan grants representatives to ‘Federally Administered Tribal Areas’ and states that rights, interests, religions and cultures of ‘minorities’ shall be protected. The constitution reserves seats for non-Muslim members in Parliament and provincial assemblies and for representatives from ‘tribal areas’. The 342-member National Assembly (the lower house of Parliament) has 10 reserved seats for non-Muslims minorities. The 100-member Senate has four reserved seats for non-Muslims minorities, one from each province.	Pakistan is a pluralistic society with many religious and ethno-linguistic identities, and is home to a number of indigenous and tribal groups. Human rights group Minority Rights states: The term ‘minority’ is used in the 1973 Constitution of the Islamic Republic of Pakistan on several occasions, there is, however, no definition of this term. Successive federal governments have taken the position that minorities within Pakistan are necessarily religious and that there are no ethnic or linguistic minorities or indigenous peoples. Pakistan’s officially recognised nationalities are the Punjabis, the Sindhis, the Pashtuns and the Baluchis.	ILO 107 since 15 February 1960	Yes
Singapore	The Constitution of Singapore states: 152(2): The Government shall exercise its functions in such manner as to recognise the special position of the Malays, who are the indigenous people of Singapore, and accordingly it shall be the responsibility of the Government to protect, safeguard, support, foster and promote their political, educational, religious, economic, social and cultural interests and the Malay language.	Article 39A of the Constitution provides for Group Representative Constituencies in parliament: multi-member electorates in which at least one member of each group ticket must be a Malay, Indian or member of other minority communities.	No	Yes
Sri Lanka	Article 99A of the Constitution of Sri Lanka provides that the Commissioner of elections shall ‘request’ that political parties nominate candidates for the party list seats which enable the representation of all communities (‘ethnic or otherwise’) to be commensurate with their national population ratio.	Sri Lanka has a small indigenous community, the Wanniyala-Aetto people, who have been subject to forced displacement from their traditional lands.	No	Yes
Caribbean and Americas
Antigua and Barbuda	Antigua and Barbuda does not recognise the existence of any indigenous peoples in the country in its Constitution.		No	Yes
Bahamas	The Bahamas does not recognise the existence of any indigenous peoples in the country in its Constitution.		No	Yes
Barbados	Barbados does not recognise the existence of any indigenous peoples in the country in its Constitution.		No	Yes
Belize	The preamble to the Constitution of Belize states that the people of Belize require policies which ‘… protect the identity, dignity and social and cultural values of Belizeans, including Belize’s indigenous peoples’.	Maya people are indigenous to Belize and are thought to have lived in the area for 4,000 years.	No	Yes
Canada	Section 35 of Canada’s Constitution Act 1982 provides ‘The existing aboriginal and treaty rights of the aboriginal people in Canada are hereby recognized and affirmed …’ and requires that representatives of the aboriginal peoples are consulted before any change to Sections 25 or 35 are considered. Section 25 provides that other rights shall not be interpreted so as to overrule aboriginal rights.	Comprehensive Land Claim Agreements or ‘modern treaties’ also enjoy the protection of Section 35 of the Constitution. Some Territories (Nunavut, Northwest Territories, Yukon) have majority or large minority indigenous populations and regularly elect indigenous MPs to the national Parliament.	No	No; endorsed as ‘aspirational’ 2010; endorsed in full 2016
Dominica	Dominica does not recognise the existence of any indigenous peoples in the country in its Constitution.	Dominica is ‘one of the few islands in the Eastern Caribbean that still has a population of indigenous people’. The indigenous people, the Kalinago (Carib), comprise around 5% of the population. See also Saint Vincent and the Grenadines.	ILO 169 since 25 June 2002	Yes
Grenada	Grenada does not recognise the existence of any indigenous peoples in the country in its Constitution.		No	Non-voting
Guyana	The preamble to the constitution preamble states Constitution of Guyana states that the Guyanese people ‘Value the special place in our nation of the Indigenous Peoples and recognise their right as citizens to land and security and to their promulgation of policies for their communities’.	The Constitution states that ‘Indigenous peoples shall have the right to the protection, preservation and promulgation of their languages, cultural heritage and way of life’ (149G). A legally recognised National Toshaos Council represents Indigenous peoples. The constitution establishes an Indigenous Peoples’ Commission, which is ‘to enhance the status of indigenous peoples and to respond to their legitimate demands and needs’ (212S and 212T).	No	Yes
Jamaica	Jamaica does not recognise the existence of any indigenous peoples in the country in its Constitution.		No	Yes
Saint Lucia	Saint Lucia does not recognise the existence of any indigenous peoples in the country in its Constitution.		No	Yes
Saint Kitts and Nevis	Saint Kitts and Nevis does not recognise the existence of any indigenous peoples in the country in its Constitution.		No	Non-voting
Saint Vincent and the Grenadines	Saint Vincent and the Grenadines does not recognise the existence of any indigenous peoples in the country in its Constitution.	Saint Vincent and the Grenadines also has a small indigenous Carib population.	No	Yes
Trinidad and Tobago	Trinidad and Tobago does not recognise the existence of any indigenous peoples in the country in its Constitution.		No	Yes
Europe
Cyprus	The Constitution of Cyprus recognises minority religious groups, which includes the Maronites.	The Maronites are lobbying for further recognition including: To have the Constitution modified to recognise them as national (not religious) minorities … Right to vote in parliament decision for minority representatives Actual implementation of the EU framework convention on national minorities Creation of a government commissioner on National Minorities as main interlocutor with them Amendment of school curricula to include a better understanding of the contribution of minorities to Cypriot history.	No	Yes
Malta	The constitution of Malta does not recognise indigenous peoples other than the Maltese.	The Maltese are the majority population (approximately 95%) and the original ethnic group of Malta.	No	Yes
United Kingdom	The various Acts which make up the UK’s constitutional framework grant extensive self-government rights, including protection of language and culture, to Wales, Scotland and Northern Ireland.	Kernewek (Cornish), Scots Gaelic, Welsh, and Irish, among other minority languages, have been recognised and protected as ‘regional or minority languages’ since 2002, under the UK’s accession to European Treaty 148 ‘European Charter for Regional or Minority Languages’. While the Welsh are not usually referred to as ‘indigenous peoples’ and so may not self-identify as such, they are descended from the original post-Ice Age inhabitants of Britain, who were displaced west by successive invasions of Anglo-Saxons, Danes and Normans.	No	Yes
Pacific island countries
Australia	Australia does not recognise the existence of any Indigenous peoples in the country in its Constitution.	The Indigenous status of Aboriginal and Torres Strait Islander peoples is recognised in a number of national laws, and in all state constitutions.	No	Opposed –endorsed as ‘aspirational’ 2009
Fiji	The Constitution of Fiji’s preamble recognises the indigenous people of Fiji, the iTaukei and the Rotuman, and ‘their ownership of … lands, their unique culture, customs, traditions and language’.	Minority Rights notes that the drafting of a new Constitution in 2013 ‘aimed to end the ethnically-defined divisions that had defined the country’s politics in the previous decades, instead affirming a single Fijian identity and including a range of progressive provisions in areas such as language education and land rights’.  It also notes that the Constitution recognises ‘the customary title of the indigenous Fijians (or iTaukei), Rotuman and Banaban to their lands, and their rights to royalties to resources extracted from those lands. It has been criticized, however, for not affirming the indigenous right to free, prior and informed consent. Finally, the new Constitution calls for compulsory multilingual education in iTaukei and Fijian Hindi, alongside English, and the provision of translation in court proceedings’.	ILO 169 since 3 March 1998	Non-voting
Kiribati	The Constitution of Kiribati acknowledges certain rights of the Banaban people, the former indigenous inhabitants of the island of Banaba which now comes under the laws and jurisdiction of Kiribati.	The Banabans were removed from their island with the commencement of phosphate mining in the first half of the 20th century. Many Banabans now reside on Rabi Island (Fiji). The Constitution acknowledges their special right to vote, access land, and provides for 2 elected parliamentary representatives to safeguard the Banabans’ interests: one member representing the Banaba community and the other represents the Banaban community on Rabi.	No	Non-voting
Nauru	Nauru does not recognise the existence of any indigenous peoples in the country in its Constitution.		No	Non-voting
New Zealand	New Zealand does not have a single or entrenched constitution. The Constitution Act 1986 (NZ) does not mention Māori, but the Treaty of Waitangi or ‘the principles of the Treaty of Waitangi’ are usually considered part of New Zealand’s constitutional framework.	Māori have had reserved seats in parliament since 1867 and a legislated national representative body, the New Zealand Māori Council, since 1962. The Waitangi Tribunal is empowered under the Treaty of Waitangi Act 1975 to inquire into claims of violation of treaty promises, to examine and report on proposed legislation if requested by parliament or government, to make recommendations about various forms of land, and to determine the meaning and effect of the Treaty of Waitangi.	No	Opposed –endorsed 2010
Papua New Guinea	The Constitution of Papua New Guinea recognises the customs of the country’s indigenous inhabitants (Part 2, Schedule 1.2)	Minority Rights notes: the [majority] indigenous population is almost entirely Melanesian, though there are small Polynesian outlying communities north of Bougainville. There are significant ethnic distinctions between population groups in different parts of the country. The country is unusually fragmented, by terrain, history, culture and language. About 840 distinct languages are spoken in Papua New Guinea, around a quarter of the world’s stock, reflecting enormous regional and local cultural divisions. There are small numbers of Asian and European migrants and their descendants, some of whom are long-established.	No	Non-voting
Samoa	The Constitution of Samoa does not explicitly reference indigenous peoples, but protects matai titles as part of Samoan ‘custom and usage’ and recognises the existence of customary land, which cannot be alienated.	Samoa was the first Pacific island state to secure the right to self-determination and independence, in 1962. Samoa has universal suffrage, but in order to stand for election, a person must possess a matai (family chiefdom) title. Approximately 9% of the population have matai titles.	No	Abstained; later endorsed
Solomon Islands	The Solomon Islands Constitution preamble pledges to ‘cherish and promote the different cultural traditions within Solomon Islands’. The Constitution confirms the citizenship of indigenous Solomon Islanders.	‘Indigenous Solomon Islander’ is defined (section 26(1)) as ‘any person who is, or one of whose parents is, or was, a British protected person and or a group, tribe or line indigenous to Solomon Islands’.	No	Non-voting
Tuvalu	Tuvalu does not recognise the existence of any indigenous peoples in the country in its Constitution.		No	Non-voting
Tonga	Tonga does not recognise the existence of any indigenous peoples in the country in its Constitution.		No	Non-voting
Vanuatu	The Constitution recognises indigenous citizens of Vanuatu and provides for the Malvatumauri Council of Chiefs (Chapter 5), which provides advice to Parliament on matters relating to land, custom tradition, culture and languages.	Section 72 provides that land can only be owned by the indigenous custom owners and their descendants, and that land is to be governed by customary law. Section 3(2) states ‘The Republic of Vanuatu shall protect the different local languages which are part of the national heritage, and may declare one of them as a national language’.	No	Non-voting

Appendix D: Indigenous recognition in OECD countries

This table summarises whether OECD countries with populations which fit the working definition of indigenous peoples have recognised indigenous peoples through their constitutions, laws, accession to international conventions and declarations, or other means. For this purpose we have attempted to distinguish indigenous peoples from ethnic and other minorities. Countries are listed alphabetically.

In addition, whether countries supported UNDRIP (in 2007 or since) or have ratified ILO Conventions 169 or 107 is tabulated.

Country	Constitutional recognition	Recognition of indigenous status in other national laws or instruments, notes	Ratified ILO 169 or ILO 107	UNDRIP support
Australia	The Australian Constitution does not recognise Indigenous peoples.	Yes All State constitutions now recognise Aboriginal peoples (and Torres Strait Islanders in Queensland).	No	Opposed –endorsed as ‘aspirational’ 2009
Canada	Section 35 of the Constitution Act 1982 provides ‘35(1) The existing aboriginal and treaty rights of the aboriginal people in Canada are hereby recognized and affirmed …’ and requires that representatives of the aboriginal peoples are consulted before any change to sections 25 or 35 are considered. Section 25 provides that other rights shall not be interpreted so as to overrule aboriginal rights.	Yes Canada has numerous treaties at the federal and provincial level. In 1993 the passing of the Nunavut Act and the Nunavut Land Claims Agreement Act led to the creation of the Nunavut Territory.	No	No; endorsed as ‘aspirational’ 2010; endorsed in full 2016
Chile	Chile’s Constitution 1980 does not recognise indigenous peoples. The recently unsuccessful proposed new constitution (draft Constitution of 2022) had contained several clauses guaranteeing indigenous rights.	Yes In 2010, the Court of Appeal of Valdivia ruled that a bond exists between indigenous communities and the environment which surrounds them, based on Article 25 of UNDRIP.[88]	ILO 169 since 15 Sept 2008	Yes
Colombia	Columbia’s Constitution Article 7 provides: The State recognizes and protects the ethnic and cultural diversity of the Colombian Nation. Article 10 states that ‘the languages and dialects of ethnic groups are also official in their territories’.	Yes	ILO 169 since 7 August 1991	Yes, 2009
Costa Rica	Article 1 of the Constitution (adopted in 2015) provides that Costa Rica is ‘multiethnic and multicultural’. Article 76 requires the state to maintain and cultivate indigenous languages. Article 7 makes treaties superior to domestic law, which means ILO 169 is enforceable in domestic courts.	Yes	ILO 169 since 2 April 1993	Yes
Denmark	Greenland was recognised as part of Denmark and granted parliamentary representation and a degree of autonomy in the 1953 Constitution.	Since 2009 Greenland is considered a semi-autonomous country with ‘self rule’ under the Crown of Denmark. Greenland and the Faroe Islands have 2 seats each in the Danish Parliament. Over 90% of Greenland’s population are indigenous.	ILO 169 since 22 Feb 1996	Yes
Finland	Sámi people were recognised in the Finnish Constitution in 1995.	There is some regional self-government since 1996. Finland has a Sámi parliament.	No	Yes
France	One of the French Constitution’s principles is ‘indivisibility’, with all citizens being equal and French being the only recognised language. Among other consequences, this prohibits collecting statistics differentiated by ethnicity in France’s overseas colonies. New Caledonians have a special ‘New Caledonian citizen’ status under law.	Some French overseas territories have the ability to make local laws and recognise various forms of traditional title. New Caledonia has a Customary Senate which represents Kanaks on matters affecting Kanak identity. French Polynesia is campaigning for the official recognition of Polynesian languages. Indigenous citizens of French Guiana are campaigning for the return of traditional lands.	No	Yes
Israel	Israel does not have a constitution but has a set of Basic Laws. The 2018 Basic Law: Israel as the Nation-State of the Jewish People is often seen as discriminating against Arab-language speakers and non-Jewish ethnic minorities.	No The Negev Bedouin are Arab Israeli pastoralists and are classified as indigenous peoples by several NGOs and scholars.	No	Non-voting
Japan	The Constitution of Japan does not recognise indigenous peoples.	Japan passed a law to recognise the Ainu in April 2019 after a government declaration of recognition on 6 June 2008. Japan has not recognised Ryukyu (Okinawan) Peoples as indigenous peoples.	No	Yes. Recognition of Ainu people in 2008 was apparently influenced by UNDRIP.[89]
Mexico	Article 2 of the Constitution guarantees the right to self-determination of indigenous peoples in Mexico and numerous other rights.	Yes	ILO 169 since 5 Sept 1990	Yes
Norway	Constitution Article 110a, passed in 1988, covers the rights of the Sámi people.	Yes Norway has a Sámi parliament.	ILO 169 since 19 June 1990 (first country to ratify)	Yes
New Zealand	New Zealand does not have a single or entrenched constitution. The Constitution Act 1986 (NZ) does not mention Māori but the Treaty of Waitangi or ‘the principles of the Treaty of Waitangi’ are usually considered part of New Zealand’s constitutional framework.	Yes Mechanisms include the Treaty of Waitangi and Waitangi Tribunal process; Māori seats in New Zealand Parliament; and the New Zealand Māori Council.	No	No; endorsed 2010
Spain	Article 143 of Spain’s Constitution provides for regional self-government and the formation of autonomous communities.	The Basque Autonomous Community is based upon Article 143. The 1982 Language Standardization Law in País Vasco and 1986 Ley Foral del Euskera in Navarra set out the use of the Basque language. The Basque language, a pre-Indo-European language, is an official language of government in in the autonomous region of the Basque Country and in the Basque-speaking and mixed areas of Navarra.	ILO 169 since 15 Feb 2007	Yes
Sweden	The Swedish Constitution Article 2 provides: The opportunities of the Sami people and ethnic, linguistic and religious minorities to preserve and develop a cultural and social life of their own shall be promoted.	Yes, since 1977. A Sámi Parliament was created by legislation in 1993. The Sámi Parliament in Sweden is both a popularly elected representative body for Sámi people in Sweden, and a State administrative agency with limited and legally regulated tasks. In November 2021, the Swedish Government announced that it was setting up a truth commission that will review the history of Sweden’s policies toward the Sámi and the effect these policies have had on the Sámi people.	No	Yes
Türkiye	The Constitution states that Türkiye is a unitary state with only one people (Turk). Article 42 states that only Turkish can be taught as a first language in schools.	Türkiye officially recognises Greek, Armenian and Jewish minorities under the Treaty of Lausanne. Kurds and other minorities are not recognised.	No	Yes
United Kingdom	The UK has a number of acts that provide sources of constitutional authority, rather than a single entrenched constitution. Acts of Parliament have devolved various powers to national Parliaments in Wales and Scotland. The Isle of Man and Channel Islands have limited self-government.	Welsh, Cornish, Scottish and other non-English peoples of the UK are not usually referred to as ‘indigenous’, but a number of laws and instruments protect and promote their languages and cultures. Welsh, Cornish, Manx Gaelic, Scots, Scots Gaelic, and other minority languages in the UK have protected status under the UK’s accession to European Treaty 148 ‘European Charter for Regional or Minority Languages’.	No	Yes
United States of America	Article I, Section 8 of the Constitution states that ‘Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes’, providing the legal basis for separate tribal sovereignty as ‘domestic dependant’ nations.	Yes Numerous treaties. The Cherokee and Choktaw nations are entitled by treaty to have a non-voting delegate in the House of Representatives. This right has not yet been granted, but the Cherokee are campaigning for it. A number of Native American tribes and Native Hawaiian people are not recognised to the same extent as treaty tribes. The US State of Maine provides for 3 non-voting tribal representatives in its Legislature.	No	No; endorsed, 2010 (full announcement January 2011)

 

Caveat

While we have endeavoured to cover as many relevant countries as we could find up-to-date information for, the information in this paper is not intended to be exhaustive. 

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