UN Declaration on the Rights of Indigenous Peoples Claire Charters

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

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

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 Chair’s text

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

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

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

NZ’s objections Fear of secession Ambiguity in the text Unrealistic obligations Threats to “3rd Party” rights Protection of “other” Indigenous peoples Need for consensus

Responses to NZ’s 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

Reponses to NZ’s objections cont’d 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 state’s 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

Responses to NZ’s 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

Lands, territories and resources Chair’s 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