UN indigenous peoples declaration put on hold  

by Warren Allmand

In June 2006, the historic first meeting of the United Nations Human Rights Council adopted the Declaration on the Rights of the Indigenous Peoples by a vote of an overwhelming majority of its members. The declaration will come before the General Assembly before the end of 2006. All states are urged to do their utmost to ensure that this much-needed and long-overdue human rights instrument is adopted with a strong show of support by the international community.

The urgent need for the declaration

Indigenous peoples are among the most marginalized, impoverished and frequently victimized sectors of the societies they live in. This is true in every region of the world. UN Secretary-General Kofi Annan has said:

“For far too long the hopes and aspirations of indigenous peoples have been ignored; their lands have been taken; their cultures denigrated or directly attacked; their languages and customs suppressed; their wisdom and traditional knowledge overlooked; and their sustainable ways of developing natural resources dismissed. Some have even faced the threat of extinction... The answer to these grave threats must be to confront them without delay.”

Two decades of preparation

The declaration has been under development for more than 20 years, making it one of the most intensely debated and carefully scrutinized human rights instruments in UN history. Uniquely, the primary beneficiaries of the declaration, indigenous peoples themselves, have been an integral part of its development.

Over these two decades, it has become apparent that a small handful of states are intractably opposed to the declaration for reasons of domestic politics. However, it is also clear that the majority of states and indigenous peoples’ organizations that participated in the elaboration of the text have been able to find common ground on the legitimate needs of states and indigenous peoples.

At the 2005 UN World Summit, heads of government reaffirmed their commitment “to continue making progress in the advancement of the human rights of the world’s indigenous peoples at the local, national, regional and international levels, including through consultation and collaboration with them, and to present for adoption a final draft United Nations declaration on the rights of indigenous peoples as soon as possible.”

A framework for partnership

The declaration provides an inspiring vision of a new relationship between states and indigenous peoples, one based on cooperation and respect for the rights of all. The declaration consistently and repeatedly refers to collaboration, cooperation or partnership. The preamble states:

“... recognition of the rights of indigenous peoples in this declaration will enhance harmonious and cooperative relations between the state and indigenous peoples, based on principles of justice, democracy, respect for human rights, non-discrimination and good faith.”

In the second article, the declaration affirms that “indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity.”

The declaration elaborates a framework of human rights protections based on the specific circumstances of indigenous peoples. In particular, it responds to the necessity for indigenous peoples to maintain and pass on to future generations their distinct cultural identities, traditions and practices. The declaration also reflects the centrality of the land to indigenous peoples’ distinct cultures and to their health and well-being. The majority of rights affirmed in the declaration are collective rights of indigenous societies as a whole. At least 10 articles deal directly with measures needed to maintain indigenous peoples’ unique relationship with the land.

The right of self-determination

The declaration is concerned with ending discrimination against indigenous peoples and ensuring that they can exercise meaningful control over their lands and territories, their lives and their futures. Accordingly, the third article affirms that indigenous peoples, like all other peoples, have the right of self-determination. This is the same right of all peoples as recognized in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Naturally, the right of self-determination affirmed in the declaration is subject to the same limits and constraints in international law as the long-established right under the two Covenants. This point is explicitly underlined in the declaration:

“…the Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights affirm the fundamental importance of the right of self-determination of all peoples, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development.… nothing in this declaration may be used to deny any peoples their right of self-determination, exercised in conformity with international law…”

Justice, equality and rights

The declaration affirms that all the protections of international human rights law must extend to those indigenous societies, communities, families and individuals which have so often been arbitrarily denied their basic human rights. It also affirms that the distinct rights of indigenous peoples must be interpreted and applied in the context of international human rights laws and standards. 

In the exercise of the rights enunciated in the present declaration, human rights and fundamental freedoms of all shall be respected. The exercise of the rights set forth in this declaration shall be subject only to such limitations as are determined by law, in accordance with international human rights obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.

Canada’s role

For the last few years, Canada was a strong supporter of the declaration and was instrumental in developing the consensus document. Unfortunately, the new Canadian government has joined with the U.S., Australia, and others in opposing the declaration. On June 29, 2006, when the new Human Rights Council adopted the declaration by 30 votes to 2, Canada was one of the two nations to vote against. Canada continues to lobby against the declaration at the UN, to have it delayed or amended. Canadians concerned with the rights of indigenous peoples should write the government expressing their support for the declaration.

From bad to worse ….

Ed. Note: As this issue of Mondial went to press, supporters of the Declaration expressed disappointment after a vote November 27 at the Third Committee of the UN General Assembly failed to affirm it. The UN GA’s Third Committee, which deals with social, humanitarian and cultural issues, decided to put aside the matter for further discussion, as a majority of member states approved a resolution to defer. It will come up again at Third Committee during next year’s session of the General Assembly.

Many African nations that supported the declaration in Geneva this summer reversed their position, demanding that the wording on the “right to self-determination” be changed. As a result of lobbying by the U.S., Canada, Australia and New Zealand, the resolution in support of amendments to the draft was endorsed by 82 countries while 67 voted against it, with 25 abstentions.