Declaration on the Rights of Indigenous Peoples

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The United Nations Declaration on the Rights of Indigenous Peoples was adopted by the United Nations General Assembly during its 62nd session at UN Headquarters in New York City on 13 September 2007.

While as a General Assembly Declaration it is not a legally binding instrument under international law, 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."^[1]

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".^[1] 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".^[1][2]

Negotiation and adoption

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 R. 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.^[3] 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, two against, 12 abstentions, and three absentees.^[4]

The Declaration was then referred to the General Assembly, which voted on the adoption of the proposal on 13 September 2007 during its 61st regular session. The vote was 143 countries in favour, four against, and 11 abstaining.^[5] The four member states that voted against were Australia, Canada, New Zealand and the United States, all of which have their origins as colonies of the United Kingdom and have large non-indigenous immigrant majorities and small remnant indigenous populations. Since then, all four countries have moved to endorse the declaration. The abstaining countries were Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine; another 34 member states were absent from the vote.^[6] Colombia and Samoa have since endorsed the document.^[7]

Reaction

Support

In contrast to the Declaration's rejection by Australia, Canada, New Zealand and the United States, 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."^[2] Similarly, news of the Declaration's adoption was greeted with jubilation in Africa^[8] 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.^[9] 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."^[10]

Criticism

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. In addition to those intending to vote against the adoption of the declaration, a group of African countries represented by Namibia who proposed to defer action, to hold further consultations, and to conclude consideration of the declaration by September 2007.^[11] 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.^[12] 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, 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."^[5]

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 Senate as:^[13]

• 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."^[13]
• 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."^[13]
• 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."^[13] 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."^[13]
• 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",^[13] 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.^[14] On 3 April 2009, the Rudd government formally endorsed the Declaration.^[15]

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,"^[5] 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).^[16]

Minister of Indian Affairs and Northern Development Chuck Strahl described the document as "unworkable in a Western democracy under a constitutional government."^[17] 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."^[18]

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.^[19]

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.^[20]

New Zealand

New Zealand delegation at the United Nations 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."^[21]

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."^[22]

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.^[23] However in April 2010 Pita Sharples announced New Zealand's support of the declaration at a speech in New York.^[24]

On 19 April 2010, Sharples announced that New Zealand endorsed the UN declaration.^[25]

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."^[26] 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.^[27]

On 16 December 2010, President Obama declared that the United States is going to sign the declaration. The decision was announced during the second White House Tribal 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^[28] in the United States. Many had representatives at the White House conference and applauded Obama's announcement.^[29]

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."^[30]

References

1. ^ ^{a b c} Frequently Asked Questions: Declaration on the Rights of Indigenous Peoples United Nations Permanent Forum on Indigenous Issues.
2. ^ ^{a b} United Nations adopts Declaration on Rights of Indigenous Peoples United Nations News Centre, 13 September 2007.
3. ^ Declaration on the Rights of Indigenous Peoples: Adopted by the Human Rights Council on 29 June 2006 United Nations Permanent Forum on Indigenous Issues.
4. ^ UN Human Rights Council adopts documents on disappearances and indigenous peoples United Nations News Centre, 29 June 2006.
5. ^ ^{a b c} Indigenous rights outlined by UN BBC News, 13 September 2007.
6. ^ UN adopts Declaration on Rights of Indigenous Peoples United Nations News Centre, 13 September 2007.
7. ^ UN Permanent Forum on Indigenous Issues, United Nations Declaration on Rights of Indigenous Peoples.
8. ^ Africa: Jubilation as UN Approves Indigenous Peoples Declaration AllAfrica.com, 13 September 2007.
9. ^ Aprueba ONU declaración de derechos indígenas El Universal, 13 September 2007.
10. ^ After 22 years, UN votes on indigenous peoples declaration
11. ^ "United States Joins Australia and New Zealand in Criticizing Proposed Declaration on Indigenous Peoples' Rights" The American Journal of International Law, Vol. 101, No. 1 (Jan. 2007), pp.211-213.
12. ^ Hall, Tony (2003). The American Empire and the Fourth World : The bowl with one spoon. McGill-Queen's native and northern series, 34.. Montreal; Ithaca: McGill-Queen's University Press. ISBN 0773530061 9780773530065 0773523324 9780773523326. 
13. ^ ^{a b c d e f} Matters of Urgency: United Nations Declaration on the Rights of Indigenous Peoples Senate Hansards, 10 September 2007.
14. ^ BBC News, Oct 2007 - Howard vows Aborigine rights vote
15. ^ Experts hail Australia’s backing of UN declaration of indigenous peoples’ rights, UN News Centre
16. ^ "Factbox: What is the Declaration on the Rights of Indigenous Peoples?". National Post. 2007-09-13. http://www.canada.com/nationalpost/news/story.html?id=eec0b550-e95a-492b-8801-6ede20a2d35e. Retrieved 2010-06-25. 
17. ^ "Native rights declaration inconsistent with legal tradition: Strahl". National Post. 2007-09-13. http://www.canada.com/nationalpost/news/story.html?id=23df9769-3423-4f43-b828-a755725c2719&k=23677. Retrieved 2010-06-25. 
18. ^ "Tories defend 'no' in native rights vote". Canwest News Service. 2007-09-14. http://www.canada.com/montrealgazette/news/story.html?id=5a03839b-6ee5-4391-8cd8-fe9338ac7baf. Retrieved 2010-06-25. 
19. ^ Barrera, Jorge. "AFN plans to invite "visionary" Chavez to visit Canada". Canwest News Service. http://www.handsoffvenezuela.org/canadian_indigenous_leaders_invite_chavez.htm. Retrieved 2010-06-25. 
20. ^ "It's time to reconcile indigenous rights and democracy in Canada". The Hill Times. 2010-12-06. http://www.hilltimes.com/page/view/cosentino-12-6-2010. Retrieved 2010-12-16. 
21. ^ Māori Party’s head in the clouds New Zealand government press release, via scoop.co.nz, 14 September 2007.
22. ^ "NZ indigenous rights stance 'shameful' - Maori Party". Stuff.co.nz. 14 September 2007. http://www.stuff.co.nz/stuff/4202223a8153.html. Retrieved 27 September 2011. 
23. ^ "Government to endorse UN indigenous rights declaration". Stuff.co.nz. 2009-07-07. http://www.stuff.co.nz/national/politics/2570689/Government-to-endorse-UN-indigenous-rights-declaration. Retrieved 2009-07-07. 
24. ^ "NZ does U-turn on rights charter". 2010-04-20. http://www.stuff.co.nz/national/politics/3599153/NZ-does-U-turn-on-rights-charter. 
25. ^ New Zealand Statement Before 9th Session of the United Nations Permanent Forum on Indigenous Issues
26. ^ UN adopts declaration on rights for indigenous peoples worldwide International Herald Tribune, 13 September 2007.
27. ^ Explanation of vote on the Declaration on the Rights of Indigenous Peoples United States Mission to the United Nations press release, 13 September 2007.
28. ^ List of tribes in the United States
29. ^ "U.S. will sign U.N. declaration on rights of native people, Obama tells tribes". The Washington Post. 2010-12-16. http://www.washingtonpost.com/wp-dyn/content/article/2010/12/16/AR2010121603136.html. Retrieved 2010-12-16. 
30. ^ GENERAL ASSEMBLY ADOPTS DECLARATION ON RIGHTS OF INDIGENOUS PEOPLES; at www.un.org

External links

• United Nations Declaration on the Rights of Indigenous Peoples as Adopted by the General Assembly, 13 September 2007 Full text of the Declaration.
• Adoption of the U.N. Draft Declaration on the Rights of Indigenous Peoples at the Human Rights Council in Geneva Video news reel by Rebecca Sommer
• Adoption of the U.N. Declaration on the Rights of Indigenous Peoples at the General Assembly in NYC Video news reel by Rebecca Sommer
• United Nations Declaration on the Rights of Indigenous Peoples Adopted by the Human Rights Council on 29 June 2006 Briefing from the United Nations Permanent Forum on Indigenous Issues (UNPFII) on the adoption of the Declaration.
• FAQs on the Declaration on the Rights of Indigenous Peoples From UNPFII.
• Position of Canada Statement by Ambassador John McNee to the General Assembly.
• Position of New Zealand Explanation of vote by Permanent Representative Rosemary Banks.
• Position of the United States Explanation of vote by Advisor Robert Hagen and document "Observations of the United States with respect to the Declaration on the Rights of Indigenous Peoples".
• Annotate This: The UN Declaration of Rights of Indigenous Peoples Foreign Policy in Focus, 5 October 2007.
• Text of the Declaration at the Center for a World in Balance.