United Nations Declaration on the Rights of Indigenous Peoples LEXPERT – Aboriginal Law 2013

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Text of United Nations Declaration on the Rights of Indigenous Peoples LEXPERT – Aboriginal Law 2013

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United Nations Declaration on the Rights of Indigenous Peoples LEXPERT Aboriginal Law 2013 Slide 2 Overview 2007: U.N. Declaration: a non-legally binding, aspirational declaration adopted by the U.N. General Assembly Describes both individual and collective rights of Indigenous peoples around the world Principles: equality, partnership, good faith and mutual respect 2 Slide 3 Overview Timeline 1985: U.N. Working Group on Indigenous Populations (WGIP) (independent experts) decided to create a declaration on Indigenous rights 1993-94: WGIP submitted draft declaration to Sub- Commission on the Promotion and Protection of Human Rights (parent body of WGIP), which adopted the draft declaration without changes 1995: Working Group of the Commission on Human Rights was established to elaborate a Declaration on the Rights of Indigenous Peoples based on the WGIP draft 3 Slide 4 Overview Timeline, cont. 2004: U.N. General Assembly commenced substantive negotiations on the draft Declaration 2006: U.N. Human Rights Council brought forward Declaration without prior discussion by member States or Indigenous representatives 2007: Canada, New Zealand, Colombia and Russian Federation suggested possible amendments to secure further negotiations; negotiations did not occur and Declaration was adopted without changes 4 Slide 5 Overview U.N. Adoption of Declaration Adopted on September 13, 2007 by resolution of U.N. General Assembly 143 states voted in favour of adopting Declaration 4 states voted against adopting Declaration: Canada, New Zealand, Australia and USA (all have since endorsed the Declaration conditionally) 11 states abstained 34 states were absent Caveats: Many states in favour qualified their vote, emphasizing that the Declaration is non-binding and subject to varying interpretations 5 Slide 6 Overview 2007: Canada voted against Declaration Canada expressed disappointment in voting against a document that it had actively participated in developing for over 20 years Liberals, NDP and Bloc Quebecois criticized the Conservatives for failing to follow the will of Parliament and failing to meet the Crowns duty to consult In 2008, Parliament voted 148 to 113 in favour of adopting the Declaration Canada gave both procedural and substantive reasons for voting against adoption of Declaration 6 Slide 7 Overview Procedural Reasons Canada proposed further, open and transparent negotiations with effective involvement of Indigenous peoples this did not occur Canada proposed amendments to ensure the Declaration could be interpreted in accordance with each states Constitutional framework these were not accepted Last-minute modifications prepared by a limited number of delegations were presented to the General Assembly. The modifications did not address concerns of key delegations, including Canada; Canada was not satisfied with the final text of the Declaration 7 Slide 8 Overview Canadas reasons for voting against in 2007: Government of Canada submitted that the Declaration: (a) was fundamentally flawed and lacked clear, practical guidance for implementation; (b) was ambiguous and open to broad interpretations that may not take into account Indigenous rights in Canada; and (c) contained provisions that were fundamentally incompatible with Canadas constitutional framework 8 Slide 9 Overview Incompatible with Canadas Constitution Lands, territories and resources Article 26(1): Indigenous peoples have the right to lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. Difficult to reconcile with Canadas recognition of a range of Aboriginal rights in relation to land, from rights of use such as hunting and fishing, to Aboriginal title. Does not take into account different interests, legislative regimes or protections that apply to the land 9 Slide 10 Overview Incompatible with Canadas Constitution Lands, territories and resources Article 28(1): Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent. Canada preferred a clause that explicitly excluded retroactive application, so as not to apply to lands formerly held but extinguished by treaty or other lawful means traditional occupation likely not the same as Aboriginal title 10 Slide 11 Overview Incompatible with Canadas Constitution Free, prior and informed consent Article 19: States shall consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them. 11 Slide 12 Overview Incompatible with Canadas Constitution Free, prior and informed consent Canadas concerns: implies that states cannot act without the consent of Indigenous peoples even when such actions are matters of general policy and could be interpreted as a veto; and could be interpreted as going beyond the Constitution Act, 1982 and overriding the duty to consult in Canadian law Criticism: Free, prior, and informed consent is not automatically a veto, and there is no reference to a veto in Declaration; and Free, prior and informed consent is a means of participating on an equal footing in decisions However, consent means consent 12 Slide 13 Overview Incompatible with Canadas Constitution Self-government Article 4: Indigenous peoples, in exercising their right to self determination, have the right to autonomy or self- government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. Article 4 is silent on the importance of paramountcy of federal or provincial laws of overriding national or provincial importance Canada viewed the scope of Aboriginal jurisdiction as extending to matters internal to a group; it preferred a clause that would ensure a harmonious relationship among federal, provincial and Aboriginal government laws 13 Slide 14 Overview Criticism of Canada Canadas refusal to endorse and implement the Declaration is a stain on the countrys human rights record. The nation has failed to uphold its international obligations. It can no longer credibly claim to be a defender of human rights in the international community. Former National Chief of the Assembly of First Nations No credible legal rationale has been provided to substantiate these extraordinary and erroneous claims. We are concerned that the misleading claims made by the Canadian government continue to be used to justify opposition, as well as impede international co-operation and implementation of this human rights instrument. Open letter of Canadian scholars and experts 14 Slide 15 Overview Incompatible with Canadas Constitution Balancing of Rights Declaration did not recognize Canadas need to balance Indigenous rights to land and resources with the rights of other Canadians, and did not contain any balancing of individual and collective rights Declaration suggests that Indigenous rights prevail over the rights of others, without sufficiently taking into account the rights of other individuals and groups, and general welfare of society. 15 Slide 16 Overview Canada eventually adopted the Declaration November 12, 2010: Canada issued a Statement of Support endorsing the Declaration Reasons: Declaration had potential to contribute positively to the advancement of Indigenous rights; underlying principles were consistent with Canadas goals; by 2010, Canada was confident it could interpret the Declaration in a manner consistent with its Constitution and legal framework; better to endorse Declaration while explaining concerns, than to reject it entirely; and was an opportunity for Canadian government to strengthen relations with Aboriginal peoples in Canada 16 Slide 17 Overview Caveats in Canadas Statement of Support Declaration is a non-legally binding document Declaration does not reflect customary international law Declaration does not change Canadian Law Canadas endorsement with caveats has been met with mixed reviews 17 Slide 18 Voting and the Declaration 88 countries have identifiable Indigenous populations based on data provided by the UNHCR RefWorld database of countries with minorities and Indigenous peoples. 192 states were eligible to vote on the Declaration in 2007. 18 HAVE ABORIGINAL PEOPLE DONT HAVE ABORIGINAL PEOPLE TOTAL IN FAVOR42101143 AGAINST404 ABSTAIN110 ABSENT31334 TOTAL88104192 Slide 19 Voting and the Declaration Since 74% voted in favor of the Declaration, the general assumption has always been that it was seen as a welcome development by all 19 Slide 20 Voting and the Declaration Out of 192 countries with voting power at the time, 143 voted in favor of the Declaration. 101 of those nations voting in favor do not have Aboriginal peoples 20 Slide 21 Voting and the Declaration Of those who voted in favor, only 29% had Indigenous peoples 100% of those who voted against had Indigenous peoples 100% of those who abstained had Indigenous peoples 91% of those who were absent had Indigenous peoples 21 Slide 22 Commentary Revealing statements were made by countries who qualified their vote Majority emphasized that Declaration is non-binding and subject to varying interpretations Concerns expressed by countries with caveats suggest a focus on the wording and implementation of the Declaration, rather than a disregard for Indigenous rights The following countries expressed significant reservations about the right to self-determination, free prior and informed consent; or because of ambiguities in the text generall