Aboriginal Law Bulletin
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Aboriginal Law Bulletin |
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by Catherine J Iorns
After eight years of work, the Working Group on Indigenous Peoples (WGIP) has produced its final Draft Declaration on the Rights of Indigenous Peoples. On 23 August 1993, the WGIP attached this Draft to its report to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, during its 45th Session.[1] This paper will note how some issues of particular concern to Aboriginal peoples have been resolved in this final Draft. For more detail than this space allows, readers are urged to examine the Draft Declaration itself.
As the Draft Declaration was not completed in time for the Sub-Commission to consider it fully at its 45th session, the WGIP has recommended to the Sub-Commission that it consider the Draft in its 46th session (August 1994) and then present it to the Commission on Human Rights at its next (51st) session in early-1995. If the Commission on Human Rights considered and adopted the Draft Declaration at that session it would then proceed to the Economic and Social Council (ECOSOC) and, finally, the General Assembly. It is hoped that this can be done in time for the GA's late-1995 session.
The participation of indigenous peoples in the bodies other than the WGIP is of extreme concern to all indigenous peoples, because the current UN rules on participation exclude most indigenous peoples and their organisations from the process. Indigenous peoples fear that, if they are excluded, States will change the provisions in the Draft and destroy the gains that have been made for indigenous peoples' rights over the last eight years. The WGIP has recognised this concern and recommended that the Commission on Human Rights and ECOSOC "take special measures so that indigenous peoples be enabled to participate fully and effectively" in all future consideration of the Draft by the various relevant UN bodies[2]
Indigenous peoples argue that that they must be recognised as having the (inherent) right of self-determination. They are not expressing a desire for each and every indigenous people to secede from the state in which they live; they are instead concerned about the ability to decide upon and form their own destiny. The concern of states, on the other hand, is the maintenance of their sovereignty and territorial integrity. The state representatives at the WGIP sessions thus, initially, vehemently refused to even consider any inclusion of a right of self-determination. While states have come to accept that the Declaration should recognise a right of self-determination, they have nevertheless tried to ensure that any such recognition is limited to an internally exercised right - i.e., one that does not include a right of secession.
Indigenous peoples, not surprisingly, reject such attempts to limit their right of self-determination. They are particularly concerned that, as a matter of principle, states do not have the right to say, in advance, how indigenous peoples must decide on their own destiny and how they should thus exercise their right of self-determination. At the llth session this was forcefully put in a statement signed by most, if not all, of the representatives of the indigenous delegations at the session, which argued that there must be no fetters on the right of self-determination and stated that indigenous peoples would accept nothing less than the full and equal right that other 'peoples' enjoyed by virtue of Articles 1 of the International Covenants.
The WGIP members have come to the conclusion that the right to self-determination in the Draft has to be simple and clear and must not restrict how indigenous peoples may exercise it. Accordingly, the primary article concerning self-determination - Article 3 - provides simply that indigenous peoples have the right of self-determination and, as the Covenants provide, "[bly virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." In the opinion of this author, this is precisely what Article 3 should provide. Any more or less could be interpreted as implying a right different from the right of self-determination enjoyed by other peoples and could thus be seen to discriminate against indigenous peoples.
Another article which was bought into the debate on self-determination is Article 45. This article prohibited anything in the Draft Declaration from being interpreted as implying the right for anyone to act contrary to the UN Charter or the Declaration on Friendly Relations. The latter is often used by states to refer to their right to their territorial integrity. Thus, its specific inclusion may have led to the implication that even the right of self-determination in Article 3 was not ever able to be exercised so as to violate the territorial integrity of states. While this was not actually effectual (because the Declaration on Friendly Relations itself indicates that a state is only entitled to its territorial integrity where it is upholding the right of all peoples to self-determination), indigenous peoples wanted this reference deleted so that it could not even be argued to affect their right of self-determination. In their final Draft, the WGIP members have deleted it so that Article 45 now simply prohibits any act or activity "contrary to the Charter of the United Nations." I agree with this result, not only because I support the inclusion of a clearly unfettered right of selfdetermination, but also for reasons of legal integrity: technically, it is unnecessary, and its inclusion would privilege one international document over others that are also important to the maintenance of the international legal order.
The third article that was specifically brought into the debate on self-determination was Article 31. Article 31 provides for the right of indigenous peoples "to autonomy or self-government in matters relating to their internal or local affairs." The concern expressed by indigenous peoples was that this right was stated to be "a specific form of exercising their right to self-determination." While indigenous peoples didn't dispute that this should be considered to be a specific form, they were concerned that its special emphasis was an attempt to limit the general right of self-determination expressed in Article 3 to internal self-determination (or self-government) only, thus excluding any form of external self-determination. That is, on its face, Article 31 is perfectly benign; but indigenous peoples were worried about the way that it might be interpreted by States with not-so-benign intentions.
Despite these objections by indigenous peoples, this phrase has been retained by the WGIP. The position of the WGIP is that the grammar makes it clear that it is not meant to be a limitation of the right of selfdetermination to one of solely selfgovernment - self-government is only one option or form of the exercise of the right of self-determination.
While I consider that it would have been better to allay the fears of indigenous peoples by deleting this phrase, it is clear that the WGIP's interpretation is correct. Thus, as I doubt that it can really make any difference in practice, it is acceptable, even if not ideal.
While the Draft Declaration generally proclaims the right of indigenous peoples to their self-government, Article 33 is of concern to indigenous peoples in this respect. This article proclaims the right of indigenous peoples "to promote, develop and maintain their institutional structures and their distinctive juridical customs, traditions and practices, in accordance with internationally recognised human rights standards" (emphasis added). The concern is that the inclusion of the last phrase is an attempt to effectively negate the very right of indigenous peoples to have their own customs by imposing nonindigenous cultural values upon them. One member of the WGIP, Professor Alfonso Martinez, explicitly dissented from the inclusion of this qualification, saying that it "would render the right [recognised in Article 331 ... completely meaningless in many cases ... Although on many occasions indigenous and non-indigenous standards coincided, that might not always be the case."[3] Article 33 provides that, where they do not coincide, the non-indigenous standard is always to be preferred.
The inclusion of this phrase in this Article shows that States do not trust indigenous peoples to respect the (non-indigenous) individual human rights of their members. However, whether this is true or not, the present international human rights system that States have devised for individual protection has not exactly worked well for indigenous peoples to date. It is thus arrogant for States to assume that their standards will always work better for indigenous peoples than indigenous peoples own standards. If a conflict arises between standards adopted by indigenous peoples and those adopted by States, which should prevail could be left to be determined on a case-by-case basis as the need arose, rather than by saying that one set of rights will always prevail over the other Interestingly, the very same qualification has been deleted from Article 34, which provides that "Indigenous peoples have the collective right to determine the responsibilities of individuals to their communities." This supports its deletion from Article 33 as well.
The land and property rights contained in the Draft Declaration are, in general, a substantial improvement on the earlier Drafts. The wording of nearly all of the relevant articles has been changed and added to such that the coverage is increased and the rights strengthened. Aspects of these provisions that will be of particular interest to Aboriginal peoples include:
Article 30, in particular, is much stronger than it was in previous Drafts.
An important point to note is that the Draft Declaration offers more protection than ILO 169[4] does (see this issue p3). For example, ILO 169 only recognises rights to lands and resources presently owned, occupied or used by indigenous peoples; whereas the. Draft Declaration recognises rights to land and resources not only being owned and used in the present, but also which were owned and used in the past, even though indigenous peoples may have been deprived of them. Similarly, while ILO 169 does not recognise any rights to restitution of lands which indigenous peoples have lost to the State, Article 27 of the Draft Declaration specifically provides for such restitution.[5] Where this is not possible Article 27 provides for "just and fair compensation," which must "take the form of lands, territories and resources equal in quality, size and legal status," unless indigenous peoples freely agree upon some other form of compensation. This is important for Aboriginal peoples in the current climate where native title to lands and resources that indigenous peoples currently own or use is being disputed, let alone restitution of dispossessed lands and resources.[6]
New rights that indigenous peoples have argued for and which have been added to the Draft Declaration include: the right to enjoy, without discrimination, national and international labour law rights (Art.18); the right of equal access to medical care (Art.24); and the equal application of the Declaration to men and women (Art.43). Article 43 could elaborate and go further than it does but, as a short, general statement, it is an improvement on previous Drafts.
In conclusion, the final Draft Declaration is a considerable improvement oil earlier Drafts and contains the majority of the rights argued for by indigenous peoples, including those they consider most important, such as an unqualified right of self-determination and comprehensive land and resource rights. However, while these alone are reasons for indigenous peoples to be relatively pleased with the Draft, there is still room for improvement (including provisions not discussed in this short paper). Therefore, as the Draft Declaration makes its way through consideration by the various UN bodies before adoption, there will still be a considerable amount of work for indigenous peoples and their supporters to do - not only to maintain the rights achieved so far in the face of signalled opposition from States, but also to improve them. Some battles may have been won, but the war is not over yet.
[1] The Draft Declaration is Annexed to the Report of the UN Working Group on Indigenous Peoples on its Eleventh Session, UN Doe. E/CN.4/Sub2/1993/29 (23 August 1993), Annex 1.
[2] Report of the Working Group on Indigenous Peoples on its Elemahsssion, ibid., para. 210 (d).
[3] Ibiid at p.62.
[4] Intemational Labour Organisation Convention (No. 169): Concerning Indigenous and Tribal Peoples in Independent Countries (27 June 1989).
[5] The first sentence of Art.27 provides that "Indigenous peoples have the right to the restitution of the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, occupied, used or damaged without their free and informed consent"
[6] Note that the standard for restitution was lands of "at least equal." The change to simply "equal" is clearly a setback (or indigenous peoples. While the application of the revised provision in good faith would not necessarily result in further harm to indigenous peoples, the existence of good faith is often questionable. It thus seems that the best course of action would be to re-insert the phrase "at least."
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1993/40.html