Is there an Indigenous Right to Space?

Valmaine Toki*

Key Words: Space – Treaty rights – United Nations Declaration on the Rights of Indigenous Peoples – World view

Introduction

Space is often hailed as the final frontier to be conquered. The primary instrument that governs this desire is the Artemis Accords, announced in October 2020 by NASA, the National Aeronautics and Space Administration,[1] an independent American agency responsible for the civilian space program, aeronautics and space research.

The Artemis Accords is an agreement with international partners and commercial entities for lunar exploration and beyond, describing “a shared vision for principles, grounded in the Outer Space Treaty of 1967, to create a safe and transparent environment which facilitates exploration, science, and commercial activities for all humanity to enjoy.”[2] While the purpose of the Artemis Accords is to ‘establish a common vision via a practical set of principles, guidelines, and best practices to enhance the governance of the civil exploration and use of outer space with the intention of advancing the Artemis Program’, the Accords is silent on whether this extends to Indigenous peoples.

The Artemis Accords envisages the landing of the first woman on the Moon by 2024. With this in mind, Professor Melissa de Zwart recently asked the questions;[3]

  • “What are the laws that will regulate the sustained presence of humans on the Moon and their use of resources?
  • How will competing uses of the Moon be governed and how can international law assist with managing any resulting conflicts or tensions?”

This raises two further questions:

  • Can the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as an instrument of international law assist to manage the fundamental rights including those that extend to celestial bodies?
  • Does the Indigenous philosophy, or world view, support such a right?

To answer these questions this short piece will review the fundamental rights articulated in the UNDRIP before providing a short narrative on Indigenous world views and treaty rights as they apply to Māori.

United Nations Declaration on the Rights of Indigenous Peoples

The fundamental rights for Indigenous Peoples are recognised and articulated in the UNDRIP. The key right of self-determination is captured in Article 3.

The UNDRIP was adopted by the UN General Assembly with a majority of 143 states in favour in September 2007. Even if the UNDRIP is soft law and not legally binding until incorporated into domestic legislation, some jurisdictions have included it in their constitution. For instance, Bolivia and Congo.[4]

In addition, some jurisdictions have taken steps to promulgate enactments that promote the UNDRIP. For instance, the Canadian government has stated that, “Government of Canada must take all measures necessary to ensure that the laws of Canada are consistent with the UNDRIP, and must prepare and implement an action plan to achieve the objectives of the Declaration.” This is reflected in the Statutes of Canada 2021, Bill C-15, a framework respecting the UN Declaration on the Rights of Indigenous Peoples, assented to on June 21, 2021.

In the absence of direct incorporation by a statute there are different methods of recognising international human rights instruments through recourse to administrative law. The (outdated) concept of legitimate expectation in Australia and a mandatory relevant consideration in New Zealand, have been employed to treat unincorporated international obligations, such as the UNDRIP, as considerations for the decision-maker. Also, the presumption of consistency, a common law principle of statutory interpretation, recognises that the Parliament is presumed not to legislate intentionally in breach of its obligations.[5]

The relevant obligation is found in Article 25 of the UNDRIP:

“Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.”

Read together with the key right of self-determination, irrespective of national adoption of UNDRIP, this clearly provides the right for Indigenous peoples to maintain and strengthen their distinctive spiritual relationships with their traditionally owned or otherwise occupied and used lands, territories and other resources. The inclusion of the term “otherwise” implicitly extends to land and territories within the celestial or non-earthly realm.

Indigenous Philosophy – World View

Aotearoa – New Zealand

Although from different global regions Indigenous peoples share commonalities regarding their ‘world view’. For the Māori, Indigenous peoples in Aotearoa, New Zealand, their world view is premised on cosmology. This cosmology includes various realms from which life is derived. Within these realms is Io Matua Kore where all celestial entities exist and originate. The steps through these realms assist to govern and understand the relationship between the animate and the inanimate.

For instance, within this cosmology is the separation of Ranginui and Papatūānuku that resulted in the developing of different ecosystems.[6] This separation was all part of the whakapapa relating the gods, the natural world and humans. Whakapapa connects Māori to the environment.[7] Within this philosophy is understanding that these elements are our relations and the concept of whanaungatanga or relatedness extends this obligation to non-human or inanimate objects.[8] Customs were also developed premised on this cosmology. Although there was no concept of ownership per se the obligation to look after the resource remained.[9] Resources had their own mauri or life-force and were perceived as treasures that required protection.[10] The underpinning doctrine was Tikanga Māori.

Tikanga Māori within the celestial realm denotes this environment as inter related. The mātauranga or traditional knowledge of this celestial realm where the movements of constellations, phases of the moon, rising of the stars were well known and assisted with the precise understanding of seasons and the well-known Māori navigation through the Pacific.[11] Kauwaerunga refers to the celestial knowledge that is linked to the cosmology and creation stories.[12] This knowledge was evident before colonisation and pivotal to Tikanga Māori and Te Ao Māori or a Māori world view from which denoted the relationships, framework and guidance for rights, responsibilities and duties between the animate and inanimate, with achieving balance as the aim.[13]

Treaty of Waitangi – Treaty Right

In Aotearoa, New Zealand, Māori entered into a Treaty of Waitangi (Treaty) with the Crown. The Treaty is recognised as a constitutional canon within the unwritten constitution of Aotearoa, New Zealand and a document of extreme importance as noted by the judiciary.[14]

Article 2 of the Treaty’s English text guarantees certain rights to Māori including a right to all taonga or treasures.[15] This includes their mātauranga or traditional knowledge of the celestial realm, knowledge upon which practical activities such as planting gardens and fishing were based. The traditional knowledge associated with the celestial bodies enabled the remarkable and renown navigation of the Pacific.

In sum, the rights available are:

(a)      First, the international instrument, UNDRIP, that recognises the right for Indigenous peoples, such as Māori, to maintain and strengthen their distinctive spiritual relationships with their traditionally owned or “otherwise” occupied and used lands, territories and other resources, such as those within the celestial realm in Article 25 of the UNDRIP,

(b)     Secondly, the underpinning tikanga or worldview that links Māori indisputably to the celestial realm., and

(c)      Thirdly, a domestic Treaty right, for Māori through the rights guaranteed under the Treaty including the rights to their taonga, their mātauranga or traditional knowledge of the celestial realm.

These provide an irrefutable right to space for Indigenous peoples and the celestial realm. Similarly, in recognition of the importance of Indigenous peoples’ rights, world-view and any relevant Treaty rights, scholars have urged the Canadian Space Agency to include Indigenous peoples in this project.[16] Understanding the historical adverse impacts of colonisation on Indigenous peoples this Canadian pre-emptive approach is welcomed to avoid any further marginalisation or alienation for Indigenous peoples to their taonga. To not recognise these rights perpetuates the outdated approach of colonisation. To continue to offer and consider economic or commercial gains without Indigenous participation further exacerbates the adverse effect of colonisation.

Conclusion

The Artemis Accords refers to creating “a safe and transparent environment which facilitates exploration, science, and commercial activities for all humanity to enjoy.” In addition the purpose of the Artemis Accords is to “establish a common vision via a practical set of principles, guidelines, and best practices to enhance the governance of the civil exploration and use of outer space with the intention of advancing the Artemis Program”. Aotearoa, New Zealand has offered support for the UNDRIP and Aotearoa, New Zealand has also signed the Artemis Accords earlier this year in May. Thus, Māori are entitled to the safety promoted by the Accords and the ability to contribute to the ‘common vision’ and ‘set of principles’.

With the race to conquer space well and truly afoot, it is time to raise the issue of where Indigenous rights are accommodated within this race. The Artemis Accords is silent as to Indigenous rights, however key international instruments, doctrine and domestic treaties recognize that a “right to celestial bodies” is evident. As the UNDRIP is an international instrument, this could assist in managing any conflict and resolve any opposing interests or tensions that other nation States may have regarding recognizing these fundamental rights.



References

* Professor of Law; Ngatiwai Nga Puhi, Former Expert Member UN Permanent Forum on Indigenous Issues Te Piringa – Faculty of Law, University of Waikato, New Zealand. Email: valmaine.toki@waikato.ac.nz

[1] NASA was established in 1958, replacing the National Advisory Committee for Aeronautics.

[2] Artemis Accords, section 1.

[3] Professor Melissa de Zwart ‘Boots on the Moon: Managing the return to the Moon’ (2021) Abstract, Virtual Outer Space Law Conference, University of Waikati 3 September 2021.

[4] See Toki, V. (2011) Indigenous Rights, Hollow Rights (WLR) v 19, issue 2.

[5] Ibid.

[6] Toki, V. (2010)  Adopting a Māori Property Rights Approach to Fisheries (NZJEL) v 14 pp 197 – 221.

[7] Ibid.

[8] Ibid.

[9] Toki, V (2007) ‘Chief Executive of the Ministry of Agriculture and Forestry v Waikato Regional Council’ (RMB) September, 73.

[10] Toki, V. (2010)  Adopting a Māori Property Rights Approach to Fisheries (NZJEL) v 14 pp 197 – 221.

[11] Harris, Matamua, Smith Kerr and Waaka ‘A review of Māori Astronomy in Aotearoa – New Zealand Journal of Astronomical History and Heritage 16 (3) 325 – 336 (2013) <http://www.narit.or.th/files/JAHH/2013JAHHvol16/2013JAHH…16..325H.pdf>

[12] Ibid.

[13] Toki, V. (2010)  Adopting a Māori Property Rights Approach to Fisheries (NZJEL) v 14 pp 197 – 221. See also Toki, V. (2018) Indigenous Rights, Self-Determination and Criminal Justice (Routledge, Oxon).

[14] Toki, V. (2018) Indigenous Rights, Self-Determination and Criminal Justice (Routledge, Oxon).

[15] Ibid.

[16] Hilding Neilsonand Elena E. ĆirkovićIndigenous rights, peoples, and space exploration: A response to the Canadian Space Agency (CSA) Consulting Canadians on a framework for future space exploration activities <arXiv:2104.07118v1>