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Declaration on the Rights of Indigenous Peoples

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The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the General Assembly on Thursday, 13 September 2007, by a majority of 144 states in favour, 4 votes against (Australia, Canada, New Zealand and the United States) and 11 abstentions (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine).[1]

In May 2016 Canada officially removed its objector status to UNDRIP, almost a decade after it was adopted by the General Assembly. By now also the other 3 objectors have, to various degrees, turned their vote.

While as a General Assembly Declaration it is not a legally binding instrument under international law,[2] according to a UN press release, it does "represent the dynamic development of international legal norms and it reflects the commitment of the UN's member states to move in certain directions"; the UN describes it as setting "an important standard for the treatment of indigenous peoples that will undoubtedly be a significant tool towards eliminating human rights violations against the planet's 370 million indigenous people and assisting them in combating discrimination and marginalisation."

UNDRIP codifies "Indigenous historical grievances, contemporary challenges and socio-economic, political and cultural aspirations" and is the "culmination of generations-long efforts by Indigenous organizations to get international attention, to secure recognition for their aspirations, and to generate support for their political agendas."[3] Canada Research Chair and faculty member at the University of Saskatchewan,[4][5] Ken Coates, argues that UNDRIP resonates powerfully with Indigenous peoples, while national governments have not yet fully understood its impact.[3]

Purpose

The Declaration sets out the individual and collective rights of indigenous peoples, as well as their rights to culture, identity, language, employment, health, education and other issues. It also "emphasizes the rights of indigenous peoples to maintain and strengthen their own institutions, cultures and traditions, and to pursue their development in keeping with their own needs and aspirations".[6] It "prohibits discrimination against indigenous peoples", and it "promotes their full and effective participation in all matters that concern them and their right to remain distinct and to pursue their own visions of economic and social development".[6][7] The goal of the Declaration is to encourage countries to work alongside indigenous peoples to solve global issues, like development, multicultural democracy and decentralization.[8] According to Article 31, there is a major emphasis that the indigenous peoples will be able to protect their cultural heritage and other aspects of their culture and tradition, which is extremely important in preserving their heritage. The elaboration of this Declaration had already been recommended by the Vienna Declaration and Programme of Action[9]

Content

The Declaration is structured as a United Nations resolution, with 23 preambular clauses and 46 articles. Articles 1–40 concern particular individual and collective rights of indigenous peoples; many of them include state obligations to protect or fulfil those rights. Article 31 concerns the right to protect cultural heritage as well as manifestations of their cultures including human and genetic resources.CITEREFUN200811[Notes 1] Articles 41 and 42 concern the role of the United Nations. Articles 43–45 indicate that the rights in the declaration apply without distinction to indigenous men and women, and that the rights in the Declaration are "the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world," and do not in any way limit greater rights. Article 46 discusses the Declaration's consistency with other internationally agreed goals, and the framework for interpreting the rights declared within it.

Provisions

The opening and Article 2 of the Declaration provide that " ‘indigenous peoples are equal to all other peoples," guaranteeing them the right of existence, of living free of discrimination, and entitling them as peoples to self-determination under international law.[10]

Negotiation and adoption

UN General Assembly
Resolution 61/295
Date13 December 2007
CodeA/61/295 (Document)
SubjectIndigenous rights
Voting summary
  • 143 voted for
  • 4 voted against
  • 11 abstained
ResultAdopted

The Declaration was over 25 years in the making. The idea originated in 1982 when the UN Economic and Social Council (ECOSOC) set up its Working Group on Indigenous Populations (WGIP), established as a result of a study by Special Rapporteur José Ricardo Martínez Cobo on the problem of discrimination faced by indigenous peoples. Tasked with developing human rights standards that would protect indigenous peoples, in 1985 the Working Group began working on drafting the Declaration on the Rights of Indigenous Peoples. The draft was finished in 1993 and was submitted to the Sub-Commission on the Prevention of Discrimination and Protection of Minorities, which gave its approval the following year. During this the International Labour Organisation adopted the Indigenous and Tribal Peoples Convention, 1989.

The Draft Declaration was then referred to the Commission on Human Rights, which established another Working Group to examine its terms. Over the following years this Working Group met on 11 occasions to examine and fine-tune the Draft Declaration and its provisions. Progress was slow because of certain states' concerns regarding some key provisions of the Declaration, such as indigenous peoples' right to self-determination and the control over natural resources existing on indigenous peoples' traditional lands.[11] The final version of the Declaration was adopted on 29 June 2006 by the 47-member Human Rights Council (the successor body to the Commission on Human Rights), with 30 member states in favour, 2 against, 12 abstentions, and 3 absentees.[12]

The Declaration (document A/61/L.67) was then referred to the General Assembly, which voted on the adoption of the proposal on 13 September 2007 during its 61st regular session.[13]
The vote was, in favour 143 countries: Afghanistan, Albania, Algeria, Andorra, Angola, Antigua and Barbuda, Argentina, Armenia, Austria, Bahamas, Bahrain, Barbados, Belarus, Belgium, Belize, Benin, Bolivia, Bosnia and Herzegovina, Botswana, Brazil, Brunei Darussalam, Bulgaria, Burkina Faso, Cambodia, Cameroon, Cape Verde, Central African Republic, Chile, China, Comoros, Congo, Costa Rica, Croatia, Cuba, Cyprus, Czech Republic, Democratic People’s Republic of Korea, Democratic Republic of the Congo, Denmark, Djibouti, Dominica, Dominican Republic, Ecuador, Egypt, El Salvador, Estonia, Finland, France, Gabon, Germany, Ghana, Greece, Guatemala, Guinea, Guyana, Haiti, Honduras, Hungary, Iceland, India, Indonesia, Iran, Iraq, Ireland, Italy, Jamaica, Japan, Jordan, Kazakhstan, Kuwait, Lao People’s Democratic Republic, Latvia, Lebanon, Lesotho, Liberia, Libya, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Malaysia, Maldives, Mali, Malta, Mauritius, Mexico, Micronesia (Federated States of), Moldova, Monaco, Mongolia, Mozambique, Myanmar, Namibia, Nepal, Netherlands, Nicaragua, Niger, Norway, Oman, Pakistan, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Qatar, Republic of Korea, Saint Lucia, Saint Vincent and the Grenadines, San Marino, Saudi Arabia, Senegal, Serbia, Sierra Leone, Singapore, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sudan, Suriname, Swaziland, Sweden, Switzerland, Syria, Thailand, the Republic of Macedonia, Timor-Leste, Trinidad and Tobago, Tunisia, Turkey, United Arab Emirates, United Kingdom, United Republic of Tanzania, Uruguay, Venezuela, Viet Nam, Yemen, Zambia, Zimbabwe.

Against: Australia, Canada, New Zealand, United States. All four member states that voted against have their origins as colonies of the United Kingdom, and have large non-indigenous immigrant majorities and thriving indigenous populations. Since then, all four countries have moved to endorse the declaration in some informal way in which it would not actually become binding law pleadable in court. Canada since 2006 has made official public statements that directly attack the UN DRIP, e.g.

"Indian Affairs Minister Jim Prentice has stated publicly that the Declaration conflicts with the Canadian Charter of Rights and Freedoms but has never substantiated this extraordinary claim."[14]

Australian government interventions have been challenged under its terms without success.[15]

Abstaining, 11 countries:[16] Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine. Colombia and Samoa have since endorsed the document.[17]

Absent:[18] Chad, Côte d'Ivoire, Equatorial Guinea, Eritrea, Ethiopia, Fiji, Gambia, Grenada, Guinea-Bissau, Israel, Kiribati, Kyrgyzstan, Marshall Islands, Mauritania, Montenegro, Morocco, Nauru, Palau, Papua New Guinea, Romania, Rwanda, Saint Kitts and Nevis, São Tomé and Príncipe, Seychelles, Solomon Islands, Somalia, Tajikistan, Togo, Tonga, Turkmenistan, Tuvalu, Uganda, Uzbekistan, Vanuatu.

Reaction

Support and compromises

In contrast to the Declaration's initial rejection by Australia, Canada, New Zealand and the United States over legal concerns (all 4 countries later switched their positions to 'supporting' the declaration as a non-legally-binding document), United Nations officials and other world leaders expressed pleasure at its adoption. Secretary-General Ban Ki-moon described it as a "historic moment when UN Member States and indigenous peoples have reconciled with their painful histories and are resolved to move forward together on the path of human rights, justice and development for all." Louise Arbour, a former justice of the Supreme Court of Canada then serving as the UN's High Commissioner for Human Rights, expressed satisfaction at the hard work and perseverance that had finally "borne fruit in the most comprehensive statement to date of indigenous peoples' rights."[7] Similarly, news of the Declaration's adoption was greeted with jubilation in Africa[19] and, present at the General Assembly session in New York, Bolivian foreign minister David Choquehuanca said that he hoped the member states that had voted against or abstained would reconsider their refusal to support a document he described as being as important as the Universal Declaration of Human Rights.[20] Bolivia has become the first country to approve the U.N. declaration of indigenous rights. Evo Morales, President of Bolivia, stated, "We are the first country to turn this declaration into a law and that is important, brothers and sisters. We recognize and salute the work of our representatives. But if we were to remember the indigenous fight clearly, many of us who are sensitive would end up crying in remembering the discrimination, the scorn."

Stephen Corry, Director of the international indigenous rights organization Survival International, said, "The declaration has been debated for nearly a quarter century. Years which have seen many tribal peoples, such as the Akuntsu and Kanoê in Brazil, decimated and others, such as the Innu in Canada, brought to the edge. Governments that oppose it are shamefully fighting against the human rights of their most vulnerable peoples. Claims they make to support human rights in other areas will be seen as hypocritical."[21]

Australia

The Australian Institute of Aboriginal and Torres Strait Islander Studies formally acknowledges and upholds the principles of the Declaration in both their Collection Access and Use Policy[22] and their Guidelines for Ethical Research in Australian Indigenous Studies.[23]

Criticism, defiance and "aspirational" nullification

Prior to the adoption of the Declaration, and throughout the 62nd session of the General Assembly, a number of countries expressed concern about some key issues, such as self-determination, access to lands, territories and resources and the lack of a clear definition of the term "indigenous".[24] In addition to those intending to vote against the adoption of the declaration, a group of African countries represented by Namibia proposed to defer action, to hold further consultations, and to conclude consideration of the declaration by September 2007.[25] Ultimately, after agreeing on some adjustments to the Draft Declaration, a vast majority of states recognized that these issues could be addressed by each country at the national level.

The four states that voted against continued to express serious reservations about the final text of the Declaration as placed before the General Assembly.[26] As mentioned above, all four opposing countries have since then changed their vote in favour of the Declaration.

Australia

Australia's government opposed the Declaration in the General Assembly vote of 2007, but has since endorsed the Declaration. Australia's Mal Brough, Minister for Families, Community Services and Indigenous Affairs and of partial Australian Aboriginal ancestry, referring to the provision regarding the upholding of indigenous peoples' customary legal systems, said that "There should only be one law for all Australians and we should not enshrine in law practices that are not acceptable in the modern world."[13]

Marise Payne, Liberal Party Senator for New South Wales, further elaborated on the Australian government's objections to the Declaration in a speech to the Australian Senate:[27]

  • Concerns about references to self-determination and their potential to be misconstrued.
  • Ignorance of contemporary realities concerning land and resources. "They seem, to many readers, to require the recognition of Indigenous rights to lands which are now lawfully owned by other citizens, both Indigenous and non-Indigenous, and therefore to have some quite significant potential to impact on the rights of third parties."[27]
  • Concerns over the extension of Indigenous intellectual property rights under the declaration as unnecessary under current international and Australian law.
  • The potential abuse of the right under the Declaration for indigenous peoples to unqualified consent on matters affecting them, "which implies to some readers that they may then be able to exercise a right of veto over all matters of state, which would include national laws and other administrative measures."[27]
  • The exclusivity of indigenous rights over intellectual, real and cultural property, that "does not acknowledge the rights of third parties – in particular, their rights to access Indigenous land and heritage and cultural objects where appropriate under national law."[27] Furthermore, that the Declaration "fails to consider the different types of ownership and use that can be accorded to Indigenous people and the rights of third parties to property in that regard."[27]
  • Concerns that the Declaration places indigenous customary law in a superior position to national law, and that this may "permit the exercise of practices which would not be acceptable across the board",[27] such as customary corporal and capital punishments.

In October 2007 former Australian Prime Minister John Howard pledged to hold a referendum on changing the constitution to recognise indigenous Australians if re-elected. He said that the distinctiveness of people's identity and their rights to preserve their heritage should be acknowledged.[28]

On 3 April 2009, the Rudd government formally endorsed the Declaration.[29]

Canada

The Canadian government said that while it supported the "spirit" of the declaration, it contained elements that were "fundamentally incompatible with Canada's constitutional framework",[13] which includes both the Charter of Rights and Freedoms and Section 35, which enshrines aboriginal and treaty rights. In particular, the Canadian government had problems with Article 19 (which appears to require governments to secure the consent of indigenous peoples regarding matters of general public policy), and Articles 26 and 28 (which could allow for the re-opening or repudiation of historically settled land claims).[30]

Former Minister of Indian Affairs and Northern Development Chuck Strahl described the document as "unworkable in a Western democracy under a constitutional government."[31] Strahl elaborated, saying "In Canada, you are balancing individual rights vs. collective rights, and (this) document ... has none of that. By signing on, you default to this document by saying that the only rights in play here are the rights of the First Nations. And, of course, in Canada, that's inconsistent with our constitution." He gave an example: "In Canada ... you negotiate on this ... because (native rights) don't trump all other rights in the country. You need also to consider the people who have sometimes also lived on those lands for two or three hundred years, and have hunted and fished alongside the First Nations."[32]

The Assembly of First Nations passed a resolution in December 2007 to invite Presidents Hugo Chávez and Evo Morales to Canada to put pressure on the government to sign the Declaration on the Rights of Indigenous Peoples, calling the two heads of state "visionary leaders" and demanding Canada resign its membership on the United Nations Human Rights Council.[33]

On 3 March 2010, in the Speech From the Throne, the Governor General of Canada announced that the government was moving to endorse the declaration. "We are a country with an Aboriginal heritage. A growing number of states have given qualified recognition to the United Nations Declaration on the Rights of Indigenous Peoples. Our Government will take steps to endorse this aspirational document in a manner fully consistent with Canada’s Constitution and laws."

On 12 November 2010, Canada officially endorsed the declaration but without changing its position that it was 'aspirational'.[34]

Anishinabek spiritual leader, Chief William Commanda (1908-3 August 2011) was honoured at the 21st annual week-long First Peoples Festival held in Montreal from 2–9 August 2011, celebrating Canada's 2010 adoption of the U. N. declaration. AFN Innu representative, Ghislain Picard's tribute praised Grandfather Commanda for his work that was "key not only in the adoption of the U.N. declaration, but in all the work leading up to it throughout the last 25 years."[35]

In 2015, Romeo Saganash (a Cree Member of Parliament for Abitibi—Baie-James—Nunavik—Eeyou) sponsored Private Member's Bill C-641, the "United Nations Declaration on the Rights of Indigenous Peoples Act", which would have required the Canadian government to ensure that the laws of Canada are in harmony with UNDRIP but it was defeated on May 6, 2015.[36]

In 2016, Canada officially adopted and promised to implement the declaration fully. Speaking at the UN Permanent Forum on Indigenous Issues, Indigenous and Northern Affairs Canada minister Carolyn Bennett announced, "We are now a full supporter of the declaration, without qualification. We intend nothing less than to adopt and implement the declaration in accordance with the Canadian Constitution."[37] Bennett described the Declaration as "breathing life into Section 35 [of the Canadian Constitution] and recognizing it as a full box of rights for Indigenous Peoples in Canada."[37] In July 2016, Kwakwaka’wakw Justice Minister Jody Wilson-Raybould gave a speech that stated that "adopting the UNDRIP as being Canadian law are unworkable", due to its incompatibility with the Indian Act, the current governing statute.[38]

The federal government pledged on 21 June 2017 to rename its National Aboriginal Day to be consistent with the terminology used by the Declaration.[39]

New Zealand

New Zealand delegation at the United Nations Permanent Forum on Indigenous Issues. New Zealand endorsed the Declaration on the Rights of Indigenous Peoples in April 2010.

In 2007 New Zealand's Minister of Māori Affairs Parekura Horomia described the Declaration as "toothless", and said, "There are four provisions we have problems with, which make the declaration fundamentally incompatible with New Zealand's constitutional and legal arrangements." Article 26 in particular, he said, "appears to require recognition of rights to lands now lawfully owned by other citizens, both indigenous and non-indigenous. This ignores contemporary reality and would be impossible to implement."[40]

In response, Māori Party leader Pita Sharples said it was "shameful to the extreme that New Zealand voted against the outlawing of discrimination against indigenous people; voted against justice, dignity and fundamental freedoms for all".[41]

On 7 July 2009, the New Zealand government announced that it would support the Declaration; this, however, appeared to be a premature announcement by Pita Sharples, the current Minister of Māori Affairs, as the New Zealand government cautiously backtracked on Sharples' July announcement.[42] However, on 19 April 2010, Sharples announced New Zealand's support of the declaration at a speech in New York.[43][44]

United States

Speaking for the United States mission to the UN, spokesman Benjamin Chang said, "What was done today is not clear. The way it stands now is subject to multiple interpretations and doesn't establish a clear universal principle."[45] The U.S. mission also issued a floor document, "Observations of the United States with respect to the Declaration on the Rights of Indigenous Peoples", setting out its objections to the Declaration. Most of these are based on the same points as the three other countries' rejections but, in addition, the United States drew attention to the Declaration's failure to provide a clear definition of exactly whom the term "indigenous peoples" is intended to cover.[46]

On 16 December 2010, President Obama declared that the United States would "lend its support" to the Declaration. The decision was announced during the second White House Tribal Nations Conference, where he said he is "working hard to live up to" the name that was given to him by the Crow Nation: "One Who Helps People Throughout the Land." Obama has told Native American leaders that he wants to improve the "nation-to-nation" relationship between the United States and the tribes and repair broken promises. Today, there are more than 560 Indian tribes[47] in the United States that are recognized at the federal level, with some sixty-plus tribes recognized at the state level. Many had representatives at the White House conference and applauded Obama's announcement.[48]

The Obama administration's decision came after three consultation meetings with Native Americans and more than 3,000 written comments on the subject.[49] The support of the government also included several interpretations of the meaning of the Declaration. In the view of the United States government, the Declaration advances "a new and distinct international concept of self-determination specific to indigenous peoples," which is not the same as the existing concept in international law.[49] The statement also interprets free, prior, and informed consent, "which the United States understands to call for a process of meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders, before the actions addressed in those consultations are taken."[49]

United Kingdom

Speaking on behalf of the United Kingdom government, UK Ambassador and Deputy Permanent Representative to the United Nations, Karen Pierce, "emphasized that the Declaration was non-legally binding and did not propose to have any retroactive application on historical episodes. National minority groups and other ethnic groups within the territory of the United Kingdom and its overseas territories did not fall within the scope of the indigenous peoples to which the Declaration applied."[50]

The UK position was also clearly intended to prevent formal appeal of Canadian decisions to UK courts: Canadian indigenous peoples never accepted the 1982 constitution in which such appeal (regarding early treaties made with the Crown of the British Empire) was cut off. Under the prior 1867 constitution, 1920s Dominion of Canada and earlier law, which continue to apply to these peoples and treaties, the UN DRIP could have been pleaded in a UK court in conflicts between treaty and Canadian law. Calls to pursue this approach have been common among Canadian natives. [6]

Finland

Finland signed the International Declaration on the Rights of Indigenous Peoples when it was originally put forward.[51][52] However the reindeer owners and Forest Administration (Metsähallitus) have a long dispute in the area of the forests.[53] The UN Human Rights Committee ordered the Finnish State to stop logging in some of the disputed areas.[citation needed]

Abstentions

Ukraine

Ukraine, which initially abstained from adopting the Declaration, changed its approach to indigenous issues completely in response to the recent annexation of Crimea, asserting that Crimean Tatars are an Indigenous people. In May 2014, the country formally endorsed the UNDRIP.[54]

Pacific Island states

Ten UN member states in the Pacific, all with indigenous majorities, were absent from the assembly at the time of the vote: Fiji, Kiribati, Marshall Islands, Nauru, Palau, Papua New Guinea, Solomon Islands, Tonga, Tuvalu, Vanuatu. It is unclear whether this represents the equivalent of deliberate abstention, or whether the country delegations were absent for some other reason. The constitutions of these states typically make mention of "indigenous inhabitants" and accommodate customary laws in at least part of their modern legal systems. The constitution of Papua New Guinea, for example, has an explanatory section on the "underlying law" being based on custom, while Sch.1.2. says that "custom" means "the customs and usages of indigenous inhabitants of the country ..." (emphasis added). It may be the case, therefore, that the governments of these states took the position that their own legal systems offered sufficient protection to their own indigenous peoples. There has been no suggestion at any time since decolonisation commenced in the 1960s and the present that indigenous people are absent from any of the ten countries.

Nonetheless, Papua New Guinea and Vanuatu are among countries in this group plagued by land grabbing in recent years.[55] Researchers have warned that as much as 12% of the land surface of Papua New Guinea has been leased without informed consultation and consent from landowners, typically suppressing customary rights for 99 years.[56] Given that land grabbing was recently ruled to lie within the remit of the International Criminal Court,[57] it is a reasonable conclusion that legal systems in the Pacific, unsupported by UNDRIP, have insufficient built-in safeguards for the protection of indigenous rights.

There are also significant implications in the extractive sector for these states not having signed UNDRIP. Mining companies that are members of the International Council on Mining and Metals commit to respect the ICMM's position statement on indigenous peoples. However, ambiguity surrounds how or if member companies recognise when they are dealing with indigenous peoples. For example, Barrick Gold lists only its operations in North and South America as lying on indigenous land, yet operates in Fiji and Papua New Guinea (where a subsidiary has operated the Porgera gold mine since 2007).[58] Another member, Newmont Mining, said in its 2011 Sustainability Report[59] that it had been conducting mining exploration in Papua New Guinea for three years, yet its disclosures do not show how activities in this country may have followed the ICCM's Indigenous Peoples and Mining Good Practice Guide, first published in 2010.

Notes

  1. ^ Article 31 1. "Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions."CITEREFUN200811

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