[Adapted from an article by Warren Allmand in publication “Ideas, Interests & Issues, by George Maclean and Brenda O’Neill 2008 (Pearson-Prentice Hall). Adapted from an article originally published by Rights & Democracy.]
Throughout the world, it is widely recognized that indigenous peoples are among the most disadvantaged and vulnerable. It is estimated that there are 300-500 million indigenous people in more than 70 countries around the world, representing over 5,000 languages and cultures on every continent. Today, many indigenous peoples are engaged in a struggle to assert their self-determination, to reclaim their lands and natural resources, to control their own development and to employ their traditional languages, cultures and institutions. This struggle has led them to the United Nations, the Specialized Agencies, the Organization of American States (OAS) and other international bodies.
While certain indigenous representatives pursued their grievances in European capitals as early as the eighteenth century, the first formal approach by indigenous peoples to have their collective rights recognized by the international community was in 1923, when Cayuga Chief Deskaheh went to the League of Nations as the representative of the Six Nations of the Iroquois in Ontario. He spent a year in Geneva working to garner support for his cause, but in the end, the League denied him access. This attempt was followed in 1924 and 1925 by T.W. Ratana, a Maori leader from New Zealand, who travelled to London and Geneva to protest the breaking of the 1840 Treaty of Waitangi, which guaranteed the Maori ownership of their lands. Like Chief Deskaheh, he too was cast aside. These and other approaches to international bodies by indigenous peoples were made because they were denied justice at home; their only hope was to appeal to international bodies which they believed stood for fair treatment and human rights. While the creation of the United Nations in 1945 seemed to offer more hope, the doors of the UN were virtually closed to indigenous peoples until the 1970s. Finally in 1971, the United Nations Commission on Human Rights (UNCHR) Sub-Commission on the Prevention of Discrimination and Protection of Minorities made a significant decision to appoint a Special Rapporteur to conduct a comprehensive study of the status of the world’s indigenous peoples. This mandate was assigned to Jose Martinez Cobo, one of the 26 with the “Sub-Commission.” Cobo worked for ten years, producing interim reports in the years following 1971 and a five-volume final report between 1981 and 1984. These reports made a strong appeal for action on indigenous rights and encouraged the opening of the UN to indigenous peoples.
INTERNATIONAL DECADE OF THE WORLD’S INDIGENOUS PEOPLE
In late 1993, following a recommendation by the Vienna World Conference on Human Rights, the General Assembly proclaimed the International Decade of the World’s Indigenous people (1994-2004). Later, the General assembly decided that the theme of the decade would be “indigenous People’s Partnership in Action.” The goal of the decade was to foster International cooperation to help solve problems faced by the Indigenous peoples in such areas as human rights, culture, the environment, development, education, and health. In 1995 the General Assembly adopted the programme of activities for the Decade and identified a number of specific objectives. Among these objectives were the proposals to establish a UN Permanent Forum for Indigenous Issues (PFII) and the adoption of the UN Draft Declaration on the Rights of Indigenous Peoples (DDIP). The most important accomplishments of the decade are the following:
1. Study on Treaties
An important contribution was the final report by Miguel Alfonso Martinez, Special Rapporteur, on 22 June 1999, respecting the study on treaties, agreements, and other constructive arrangements between states and indigenous populations. This final report was preceded by three progress reports in 1992, 1994 and 1996.
In 1989, the Economic and Social council (ECOSOC) authorized the “Sub-Commission” to appoint Miguel Alfonso Martinez, a member of the Working Group on Indigenous Populations (WGIP), as Special Rapporteur, with the task of preparing a study on the potential utility of treaties, agreements and other constructive arrangements between states and indigenous populations. The Special Rapporteur was mandated to give particular attention to universal human rights standards and to suggest ways of achieving the maximum possible promotion and protection of indigenous peoples’ treaty rights in domestic as well as international law. This report provides us with some useful information and recommendations which are particularly relevant for indigenous peoples in North America and the South Pacific where many treaties had been concluded between indigenous nations and European states through their settlers. Among the numerous Martinez conclusions, his principal ones are:
In establishing formal legal relationships with peoples overseas, the European parties were clearly aware that they were negotiating and entering into contractual relations with sovereign nations, with all the international legal implications of that term during the period under consideration (par. 100).
In the case of indigenous peoples who concluded treaties with the European settlers, the Special Rapporteur has not found any sound legal argument to sustain the case that they have lost their international juridical status as nations/peoples (par. 265).
This leads to the issue of whether or not treaties concluded by the European settlers with indigenous nations currently continue to be instruments with international status in the light of international law. The Special Rapporteur is of the opinion that these instruments indeed maintain their original status and continue fully in effect, and consequently, are sources of rights and obligations for all the original parties to them (or their successors), who shall implement their provisions in good faith (par. 270, 271).
These were treaties of peace and friendship, destined to organize coexistence in, not indigenous peoples’ exclusion from, the same territory and not to regulate restrictively their lives under the overall jurisdiction of non-indigenous authorities (par.117).
The special Rapporteur reaffirms the right of indigenous peoples to self-determination (par. 256), their right to their lands and resources (par. 252), and that the treaty-making process is the most suitable way to secure their rights and resources (pars. 260 and 263). Overall, solutions cannot be achieved exclusively on a legal basis’ considerable political will is required (par. 254).
In the application of treaties, they must be interpreted according to their original spirit and intent (par. 278), with the understanding that indigenous treaty-making was totally oral in nature, and not in European languages and legal systems (par. 281).
2. Special Rapporteur
In 2001, the UNCHR appointed Rodolfo Stavenhagen as a Special Rapporteur on the situation of the human rights and fundamental freedoms of indigenous peoples (SRIP). This was done in response to the growing international concern regarding the marginalization and discrimination against indigenous peoples worldwide. The mandate, created by UNHCR resolution 2001/57, represents a significant moment for the on-going pursuit of indigenous peoples to safeguard their human rights. The Rapporteur’s mandate is complementary to those of the WGIP and the FTII and aims at strengthening the mechanisms of protection of the human rights of indigenous peoples. The Special Rapporteur made an unofficial visit to Canada in 2003 when he met with Indigenous First Nations in British Columbia, Saskatchewan, Manitoba and Nova Scotia and an official visit in 2004, when he met with First Nations in Manitoba, Ontario, Quebec and the Maritimes. He has tabled special and annual reports with the UNCHR in 2002, 2003 and 2004.
3. Other Special Rapporteurs
In recent years, indigenous peoples have also lodged grievances with other UNCHR Special Rapporteurs, such as: the Special Rapporteurs on Contemporary Forms of Racism; Religious Intolerance; Summary or Arbitrary Executions; Violence Against Women; and the Right to Development. These mechanisms provide additional avenues to raise indigenous issues and bring them to international attention – always with the goal of achieving justice at home.
4. The Permanent Forum
The PFII was first recommended in the Vienna Declaration on Human Rights in 1993. It was then proposed as one of the main objectives of the International Decade by a resolution of the General Assembly. In consequence, the Permanent Forum was created by ECOSOC (res. 2000/22) to: a) discuss indigenous issues within the Council’s mandate, including economic and social development, culture, environment, education, health and human rights; b) provide expert advice and recommendations to the council and to the programs, funds and agencies of the United Nations; and c) raise awareness about indigenous issues and help to integrate and coordinate activities in the UN system.
The Forum is made up of 16 independent experts, functioning in their personal capacities, with eight of the members nominated by indigenous peoples and eight nominated by governments. The 16 members are appointed for three years with the possibility of reappointment. The Forum meets for ten days each year in New York or Geneva or a location chosen by the Forum. The first Forum took place in 2002, and each year since that time. The general theme for the 2003 Forum was indigenous children, and for the 2004 Forum, indigenous women. With the establishment of the forum, indigenous peoples, for the first time, have become members of a UN body, and as such, help set the Forum’s agenda and determine its outcome. This is unprecedented within the UN system.
Organizations of indigenous peoples may participate as observers in the meetings of the Permanent Forum in accordance with the procedures that are applied in the WGIP where meetings are open to all indigenous peoples’ organizations, regardless of their consultative status with ECOSOC. States, UN bodies and organs, intergovernmental organizations and NGOs that have consultative status with ECOSOC may also participate as observers. As a result, at the first three meetings, there were not only a large number of indigenous organizations but also UN agencies such as the UNDP, ILO, FAO, WHO, WIPS, UNCHR, UNICEF, UNEP and many others which have general or special programs available to indigenous peoples.
The agenda provides time for all of these agencies to report on their programs for indigenous peoples and to answer questions or complaints, which are put to them by members of the Forum or by the observers. At the end of 10 days, the 16-member Forum draws up a report which includes recommendation. Since the Forum is relatively new and still unknown to many indigenous nations, it may take some time before it is used to its full potential.
5. The UNCHR, the OHCHR, and the Sub-Commission
In recent years indigenous peoples have been making greater use of the UNCHR (replaced in 2006 by the UN Human Rights Council), its ‘Sub-Commission,” and the Office of the High Commission for Human Rights (OHCHR). The UNCHR met annually in Geneva for a six-week session and since 1996, two or three days were usually set aside for indigenous issues – including reports from the Special Rapporteur, the Working Group on the Draft Declaration(WGDD), the Permanent Forum and the Decade. It provided an opportunity for indigenous organizations and their NGO allies to lobby, make comments and to raise grievances.
The OHCHR, situated in Geneva, also has a special unit dealing with indigenous rights. While not at large, it is made up of dedicated individuals who support and coordinate the various indigenous programs. It has also been helpful to indigenous organizations in providing them with information and direction and has carried on constructive relations with the Indigenous Caucus.
6. Treaty Bodies
The UN treaty-based rights system includes legal procedures through which indigenous peoples can and have sought protection for their human rights. In this respect, there are six major international human rights treaties within the UN human rights system that deal with civil and political rights, economic and social rights, racial discrimination, torture, gender discrimination, and children’s rights respectively.
There is a supervisory committee (also known as a treaty body) for each of these treaties that monitors the way in which the States Parties are fulfilling their human rights obligations as stated in the relevant treaty. Indigenous peoples can only make use of those treaties and treaty bodies which have been ratified by those countries in which they are situated. Canadian indigenous peoples have used the Treaty Bodies in several important cases: the Lubicon Lake case before the Human Rights Committee in 1984 and the Lovelace Case before the same committee in 1977.
7. Specialized Agencies
As a result of the WGIP, the Vienna declaration, the International Decade, and the increased participation of indigenous peoples in UN Charter- and Treaty-based bodies, all agencies of the UN have become more sensitive to indigenous concerns and have attempted to mainstream indigenous input into their various programs. The Un special agencies, which have a considerable degree of independence, address specific issues such as health, food, education, labour, and development, and include such organizations as WHO, FAO, UNESCO, ILO, and UNDP, each of which has an interest in the situation of indigenous peoples and which now reports annually to the Permanent Forum.
8. Participation by Indigenous Peoples
One of the greatest accomplishments of the International Decade has been the increased participation of indigenous peoples in the UN system. Not only is there an increasing number of Indigenous organizations with ECOSOC status, which is necessary for participation in the UNCHR and the Sub-Commission, but a great many more take part in the WGIP, the WGDD, and the Permanent Forum without ECOSOC status as a result of a less formal registration system to accommodate indigenous peoples and their allies. The indigenous representatives at these meetings are able to raise their concerns, lobby government and UN officials, and network with their indigenous organizations and NGOs from all over the world. Furthermore, there are NGOs based in Geneva whose principle objective is to help indigenous participants operate more effectively. The Documentation Centre for Indigenous Peoples (DOCIP) and the International Service for Human Rights (ISHR) provide assistance with secretarial services and translation. Indigenous organizations have also become adept at preparing and submitting formal communications or grievances, making speeches, and in contacting the OHCHR, the Special Rapporteurs and the Working Groups.
THE DRAFT DECLARATION OF THE RIGHTS OF INDIGENOUS PEOPLES
The most significant item of unfinished business resulting from the International Decade was the Draft Declaration. As part of the mandate to develop international standards concerning the rights of indigenous peoples, the WGIP-a group of five experts-developed and wrote the Draft declaration on the Rights of Indigenous Peoples (DDIP) between 1985 and 1994. In carrying out this task the Working Group consulted closely with Indigenous groups, governments, academics and NGOs.
The Draft declaration consisted of 18 preambular paragraphs and 45 operative paragraphs dealing with the rights to self-determination, nationality, equality, survival, indigenous cultures, traditions, education, languages, media, health and medical care, economic and social systems, the control of their lands, waters and resources and self-government. One of the specific goals of the International Decade was the completion and adoption of the Draft Declaration before the end of the Decade in 2004.
A major difficulty for some governments were Articles 25-30 in Part 6 of the Draft Declaration relating to lands, waters and resources and the rights of indigenous peoples to own, develop, control their traditional lands, and the right to restitution of lands and resources which have been taken, confiscated, occupied, used or damaged without their free and informed consent.
In the great land-grab, which occurred in all parts of the “newly discovered world” beginning in the sixteenth century, land, minerals and timber were plundered from the indigenous populations who were often left impoverished or enslaved. Today, many governments and their citizens are fearful of Part 6 in that it could leave them with less wealth and power than they presently possess. On the other hand, some states already have policies and institutions to deal with indigenous land claims and some settlements have taken place. On the whole, however, progress has been deplorable.
This, of course, was on e of the arguments by human rights activists for the adoption of such provisions in an international human rights instrument. The issue of land rights is central to the question of survival of indigenous peoples and their cultures. The indigenous concept of land as collective property was alien to the new settlers in much of the world; their relationship to the land was deeply spiritual and the destruction of that link was often equally damaging to their identity. Consequently, the articles on lands and resources were critical to any international instrument on the rights of indigenous peoples.
The most serious obstacle for the acceptance of the DDIP by governments was Article 3 on self-determination. Although the Article is an exact reproduction of Article 1 in both the Covenant of Civil an d Political Rights and the Covenant on Economic, Social and Cultural Rights ratified by 150 and 147 states respectfully, (including Canada, the U.S., and most of the countries involved in the Draft Declaration debate), many of these same states opposed its application to indigenous peoples.
Since Article 3 was a key provision of the DDIP which is essential to the practice and implementation of the other rights of the instrument, the opposition of governments to this article resulted in a stalemate and as of 15 December 2004, only two of 45 articles had been adopted after nine years of discussion.
On 30 March 2004, anticipating the end of the International Debate and the possible demise of the DDIP, the Grand Council of the Crees (Canada), supported by other indigenous groups and NGOs, made a Joint Submission to the OHCHR assessing the International Decade and urging a renewed mandate for the WGDD and improvements in the standard-setting process.
However, at the beginning of 2005 the UNCHR agreed to extend the WGDD for another year, which resulted in critical negotiations. As a result, at the last session of the WGDD on 16 December 205, agreement was reached on a large number of articles and there was growing consensus on others.
In these circumstances, the WGDD instructed the Chair to draw up a report on what he believed to be a consensus on the entire Declaration and to submit it to the UNCHR for approval.
This was done on 24 February 2006. However, because the UN early in 2006 decided to replace the UNCHR with the new Human Rights Council, the approval process was postponed until 29 June 2006. On that date, the Human Rights Council adopted the Declaration by 30 votes to 2. The only countries voting against were Canada and Russia. It should be noted that until 2006, Canada was a strong supporter of the Declaration, but with an election and a new government in early 2006, Canada changed its position and voted against it.
Following its adoption by the Human Rights Council, the Declaration was sent to the UN General Assembly for final approval. However, when it was taken up for consideration by the General Assembly’s Third Committee in the fall of 2006, certain concerns were raised by African countries and approval was postponed until 2007. During this period the new Canadian government, together with the United States and Australia, continued to oppose and lobby against the Declaration. Finally some minor amendments were made to meet the African concerns and on 13 September 2007, the General Assembly adopted the Declaration by a vote of 143 to 4 (11 abstentions). The four opposing countries were Canada, the USA, Australia, and New Zealand. A majority of countries from all continents except North America supported the Declaration. Canada’s recent contention that the Declaration conflicts with the Canadian Charter of Rights is unfounded. Article 46 of the Declaration states, “In the exercise of the rights enunciated in the present Declaration, human rights and the fundamental freedoms of all shall be respected.” Furthermore, the Declaration is an aspirational instrument and not a legally binding treaty. It does, however, provide universal benchmarks for indigenous peoples in all countries including those which voted against it. Indigenous peoples and human rights organizations will continue to campaign throughout the world for the Declaration’s universal acceptance and implementation.
The continuing opposition of some governments to the Declaration in general, and to Article 3 (self-determination) in particular, is based on scenarios which are grossly exaggerated and unreasonable. According to most international legal experts, the right to self-determination is now a peremptory norm of international law (jus cogens) from which there can be no derogation. This is supported by Article 53 of the Vienna Convention of the Law of the Treaties.
It appears to this author that the fears of governments with respect to secession and territorial integrity are exaggerated, not only because of the limitations to self-determination set out in the above-mentioned international instruments, but also because Article 3 in the UN Declaration on the Rights of Indigenous Peoples (UNDIP) is balanced by Article 4 (which deals with a local self-government as an exercise of self-determination), and by Article 46 (which provides compliance with international human rights standards and which provides that nothing in the declaration would permit activities contrary to the UN Charter).
While most experts agree that the right to self-determination includes secession, it does not automatically trigger secession, and in fact, most international instruments would only permit secession as a remedy of last resort. Consequently, if a state conducted itself in compliance with the principal of equal rights and possessed a government which respected the rights of indigenous peoples within its state boundaries to determine their unique political status and to pursue their own economic, social and cultural development, then such a state would respect the right to self-determination and have no fear of secession.
Finally, the Declaration is a “declaration” and not a “treaty”. As a result, it is an aspirational instrument with moral and political value but it is not legally binding. Regretfully, governments have dissected and opposed it as if it were a legally binding treaty.
Ted Moses, former chief of the Grand Council of the Crees of Northern Quebec, has been a long-time advocate of indigenous rights at the United Nations, having first attended at Geneva in 1981. On several occasions, he has explained why international law, international institutions and the UNDIP are essential to indigenous peoples. In 1998 he said:
The Crees brought their issues to the international community as a last resort….it was easier to gain a hearing in Canada by stepping outside of Canada and speaking to the rest of the world, [and] when domestic laws fail to provide adequate protection against racism, the antidote is recourse to international human rights law.
Earlier in 1994, he wrote;
…indigenous peoples must have recourse to a neutral jurisdiction and the possibility of the Draft Declaration which recognizes the dignity of indigenous peoples, their rights to self-determination, their right to land, to control resources, to practice their own religions, to manifest their own cultures, and their right to their own identity…the declaration, in its present form, would be non-binding but it would establish an appropriately high standard, set a principle and place the administration o justice for indigenous peoples on a level with other principles of international law and the aspirations of the indigenous peoples themselves.
The Honourable Warren Allmand, P.C., O.C., Q.C., was Minister of Indian Affairs and Northern Development under Prime Minister Pierre Trudeau. From 1997 to 2002 he was President of Rights and Democracy (The International Centre for Human Rights and Democratic Development). He is now a Montreal city councillor.