UN Declaration on the Rights of Indigenous Peoples

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UN Declaration on the Rights of Indigenous Peoples

• Claire Charters

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Declaration

• History
• Drafting in the Working Group on Indigenous
  Populations (WGIP) in 80s and early 90s - by
  indigenous peoples and states
• Approval by the Sub-Commission in 1994
• Human Rights Commission established a working
  group to negotiate the text in 1995
• Majority of articles accepted by consensus in
  2006
• Chair came up with compromise language on
  contentious articles eg self-determination and
  land rights in 2006
• Sent to the Human Rights Council in June 2006,
  which adopted it by majority Canada and Russian
  Federation voted against
• NZ (without a vote) one of the few states against

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Significance

• Most progressive and comprehensive international
  document dealing with Indigenous peoples rights
• Not binding, but
• Moral force
• Evidence of customary international law
• Positive reference by New Zealand courts and the
  Waitangi Tribunal
• Can be used as a benchmark against which states
  behaviour is assessed by international
  institutions and bodies eg Special Rapporteur
• Lobbying tool

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Politics

• Tense and protracted negotiations
• Indigenous support originally for the 1994
  Sub-Commission approved text - some states agreed
• Indigenous peoples began to participate in the
  process of amending the text to accommodate
  states concerns
• New Zealand aligned with Australia, Canada, the
  Russian Federation and the United States in
  rejecting the Chairs text

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Content

• Concern re colonial injustice and dispossession
• Collective rights
• Cultural rights
• Right to equality and other human rights
• Recognises international character of treaties
  between indigenous peoples and states and calls
  for their implementation
• Self-determination
• Political rights eg participation and retention
  of Indigenous political organisation
• Land rights and redress
• Limitations confined

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Self-Determination

• Indigenous peoples have the right of
  self-determination. By virtue of that right they
  freely determine their political status and
  freely pursue their economic, social and cultural
  development
• From article one of the International Covenants
  on Civil and Political Rights and Economic,
  Social and Cultural Rights
• Endeavours to confine to internal
  self-government rejected in article 3, but
  article 31, on self-government, the new article
  4
• States territorial integrity protected by
  article 45

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Lands and Territories

• Right to maintain and strengthen spiritual
  relationship with traditionally owned, occupied
  and used lands (omission of reference to
  material) - art 25
• Right to lands, territories and resources
  traditionally owned, occupied and used - art 26
• Right to own, use, develop and control lands etc
  currently in Indigenous possession - and state
  legal recognition of that ownership - art 26
• Redress - restitution or, if not possible,
  compensation ( equal lands, or other forms of
  appropriate redress) - art 27

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NZs objections

• Fear of secession
• Ambiguity in the text
• Unrealistic obligations
• Threats to 3rd Party rights
• Protection of other Indigenous peoples
• Need for consensus

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Responses to NZs objections

• Legitimacy concerns
• Lack of on-going consultation with Maori
• NZ and friends are all states recently found in
  breach of an indigenous peoples right to freedom
  from discrimination by the CERD
• Illogical position re supporting other
  indigenous peoples

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Reponses to NZs objections contd

• Status of the Declaration
• only a non-binding instrument
• does not override existing international legal
  protections for non-indigenous peoples rights eg
  right to property
• does not override the prohibition on threats to
  states territorial integrity - art 45
• Ambiguity
• common in international instruments
• allows more for a state-centric interpretation
• NZ et al seem to take a worst-case scenario
  interpretation

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Responses to NZs objections self-determination

• Discriminatory to exclude indigenous peoples from
  peoples entitled to self-determination
• Indigenous peoples fall into the natural meaning
  of peoples
• Element of historical sovereignty part of
  justification
• Already recognised by UN treaty bodies and other
  bodies
• Settled that self-determination only allows for
  secession in limited circumstances
• Secession not available where state respecting
  equality and self-determination of all peoples
  and representative of all peoples

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Lands, territories and resources

• Chairs text waters down the Sub-Commission text
  in that there is no clear right to indigenous
  lands that have fallen out of indigenous
  ownership
• These rights can be limited to protect
  non-indigenous peoples rights - art 45
• Non-indigenous property rights protected in
  existing international human rights treaties and
  law in any event