Abstract:
This essay aims to highlight that in the majority of circumstances, indigenous women's right to equality
can be guaranteed without harming indigenous culture. The potential for conflict between women's and
cultural rights, or individual and collective rights, has been overemphasised, and it is necessary to
reframe the deb.ltc in order to highlight the possible methods for resolution of the tensions that may
arise, instead of focusing on the inevitability of conflict. This essay argues that “instead of reifying the
opposition between 'culture' and 'human rights’", we must first recognise that human rights include
cultural rights, and as such, human rights must be 'combined and recast in diverse legal cultures'.
It is important to highlight that, as Thomas Isaac has written, '[t]he protection of individual rights, such
as those of Aboriginal women, does not imply the weakening of collective rights. The two types of
rights can coexist'. One need look no further than how tensions between individual rights are resolved
to demonstrate the veracity of this assertion. Just as conflicting individual rights are weighed against
each other to reach a balanced solution, so too can collective and individual rights be weighed in order
to reconcile competing rights. This weighing process highlights the fact that neither collective nor
individual rights are absolute, and instead they must be qualitatively, and not merely quantitively
assessed. A purely utilitarian approach under which individual rights must be automatically sacrificed
in the face of competing collective demands is unacceptable, as it makes a mockery of the very concept
of individual rights.
Yet as has been argued, asserting automatic primacy of individual rights over collective rights is
equally unsatisfactory, because of the detrimental effect such a dismissive approach has upon collective
cultural rights. We must reject the false dichotomy of cultural rights versus women's rights and
recognise that 'there is no choice to be made but an unstable balance to uphold' , or more accurately,
rather than merely upholding an unstable balance, a new, inclusive balance must be forged. What is
required is a nuanced. 'contextual approach' which carefully considers the nature of the rights and
interests in question.
