Transcript Update on International Legal Developments Relating to

UN Declaration on the Rights
of Indigenous Peoples
Claire Charters
Declaration
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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
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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
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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
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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
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Indigenous peoples have the right of selfdetermination. 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 selfgovernment” rejected in article 3, but article 31,
on self-government, the “new” article 4
States’ territorial integrity protected by article 45
Lands and Territories
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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
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Responses to NZ’s objections
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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
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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
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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
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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 SubCommission 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 nonindigenous peoples’ rights - art 45
 Non-indigenous property rights protected in
existing international human rights treaties
and law in any event
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