UN Declaration of the Rights of Indigenous Peoples

UN Declaration of the Rights of Indigenous Peoples

Geoff Campbe", Alex Dalton, Tori Morning, Mandie Vienneau, and Shingo Yanagida

Saturday, September 24, 2011

OutlineBasic Information

History of the Declaration

Canada’s Initial Objection

Why did Canada Change?

What authority does the declaration have?

Effectiveness?

Criticisms

Case Study: Bolivia, New Zealand and Columbia

Discussion


Introduction

Sets out the individual and collective rights of the world’s 370 million native peoples, calls for the maintenance and strengthening of their cultural identities, and emphasizes their right to pursue development in keeping with their own needs and aspirations.

Adopted by the UN General Assembly on September 13, 2007


Votes

Initially Australia, Canada, New Zealand and the United States voted against it.

143 in favour, 11 abstentions and 4 against (Australia, Canada New Zealand and the US

Australia endorsed it in 2009.

New Zealand Canada and the U.S. did in 2010

3%7%

91%

Yes Abstain No


Explanation

“It contained no new provisions of human rights. It was based on rights that had been approved by the United Nations system but which had somehow, over the years, been denied to indigenous peoples. It was a framework for States to protect and promote the rights of indigenous people without exclusion or discrimination.”


Process to Ratification

-1982: UN ECOSOC established Working Group on Indigenous Populations (WGIP)

-1985: WGIP began preparing draft Declaration document

-1993/94: draft Declaration completed and approved by Sub-Commission on the Prevention of Discrimination and Protection of Minorities.

Drafts were also sent to U.N. Commission on Human Rights.

- 2005 World Summit and 2006 Fifth Session of the UN Permanent Forum on Indigenous Issues (UNPFII) called for adoption of the Declaration ASA

- June 2006: Human Rights Council adopted Declaration

- September 2007 General Assembly adopted Declaration.


Canada’s Initial Objections

Article 26 of the Declaration: "Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired."

-John McNee, Canada's UN Ambassador: The Declaration is "overly broad, unclear and capable of a wide variety of interpretations" that could lead to the reopening of previously settled land claims and existing treaties.

Indian Affairs Minister Chuck Strahl: Declaration lacks clear guidance for implementation and conflicts with the existing Canadian Charter of Rights and Freedoms, which the government believes already protects the rights of aboriginals.

-Canada as a multicultural/liberal society?

“It's an aspirational document, neither convention nor treaty. We're talking here about minimum standards that relate to our right to self-rule of our territories." – Phil Fontaine, National Chief of Assembly of First Nations


Was Canada’s Rejection an opposition to fundamental Human Rights?

“The fact that Canada remains one of the few hold-outs in endorsing the fundamental rights of Aboriginal peoples, as identified in the Declaration, is unsustainable and

unworthy. Should Canada become the last country to oppose the Declaration, Canada will be viewed by the rest of the world as being a country that does not support human

rights for Indigenous Peoples, and as standing in contempt of the expectations and opinions of a more enlightened world,” - Mary Simon, National Inuit Leader

"The negative vote by this government left a black mark on Canada's reputation in the international arena when it comes to human rights,"

- Chief Picard


Why Did Canada Change Its Mind?

“We are now confident that Canada can interpret the principles expressed in the Declaration in a manner that is consistent with our Constitution and legal

framework...the government decided it was better to endorse the Declaration and explain its concerns, rather than reject the whole document.”

- Aboriginal Affairs


Indigenous Issues in Canada

- Canadian Human Rights Act amended in 2007- Proposal of Gender Equity in the Indian Registration Act

- Matrimonial Property Rights on Reserves

- Cut funding to 134 health centres for Indigenous peoples- 4,464 toxic sites on reserve land


Does the Declaration have authority?

“UN Declarations are generally not legally binding...Rather, it provides a detailing or interpretation of the human rights enshrined in other international human rights

instruments of universal resonance –as these apply to indigenous peoples and indigenous individuals. It is in that sense that the Declaration has a binding effect for the promotion,

respect and fulfillment of the rights of indigenous peoples worldwide. “

- UN FAQ Sheet


EffectivenessIt is difficult to evaluate the precise effectiveness of the Declaration because it is simply a non-binding agreement of how Indigenous Peoples should be treated. There was no codified standard to measure the effectiveness of the treaty as it is meant as a framework to guide state interaction with Indigenous Peoples.

Aboriginal people historically have had limited political representation or an effective voice when it comes to battling discrimination

“An authoritative common understanding, at the global level, of the minimum content of the rights of indigenous peoples, upon a foundation of various sources of international human rights law” -UN Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Mr. S. James Anaya

The standards of UNDRIP are also being mainstreamed into the policies and programmes of the United Nations and the specialized agencies of the ILO and UNESCO.

It is not effective in that it does not force immediate change but is in that it creates the legal precedent that Aboriginal People have these rights which have been agreed to by all parties.


Effectiveness

One way to judge is how article 38 is adopted. Article 38 provides that States shall take appropriate measures, including legislation, to achieve the ends of the Declaration

Indigenous People’s Rights Act in the Philippines

Bolivia’s National Law 3760 of 7 November 2001, which incorporates UNDRIP without change

The Chief Justice in Aurelio Cal et al. v. Belize found that the 2007 Declaration “embodying as it does, general principles of international law relating to indigenous peoples and their lands and resources, is of such force that the defendants, representing the Government of Belize, will not disregard it.”


Criticisms

“Indigenous peoples’ human rights and related State obligations are not being effectively affirmed and integrated in multilateral environmental agreements. Too often, international environmental forums and processes operate in a framework that lacks a human rightsbased approach.”

-Expert Mechanism on the Rights of Indigenous Peoples


Example of BoliviaFollowing the adoption of the UN declaration, the first indigenous president, Evo Morale, passed a national law that is an exact copy of the declaration.

“Plurinational state” as opposed to “democratic and intercultural state”

Bolivia became the first country to adopt the declaration as a national law.


Lingering Problems“The conditions faced by indigenous people in rural areas of Bolivia stand in sharp contrast to the human rights and principles enshrined in the U.N. Declaration on the Rights of Indigenous Peoples.” (Inner Press Service)


Lingering Problems The project on national highway

The president is in dilemma over whether to continue this project that could potentially boost its economy or to support the indigenous people as he has always been doing.


Controversies“Incidents of mob rule are rising as Bolivian society is empowering as never before indigenous communities” (LA Times)

Supported by the declaration, Bolivian President Evo Morales is planning to give the country's indigenous majority greater powers to decide how to punish criminals within their communities.

The new law allows indigenous people to settle disputes according to their own cultural values

Four policemen were lynched to death after being accused of extortion.


New Zealand April 2010 New Zealand signs UN Declaration

-Appeals sent to Social, Humanitarian and Cultural Committee of the UnitedNations on behalf of Te Matarahurahu seeking to reclaim 2490 acres inAotearoa’s Bay of Islands, known as the 'Treaty Grounds'

-Article 32: "States shall consult and cooperate in good faith with theindigenous peoples concerned through their own representative institutions inorder to obtain their free and informed consent prior to the approval of anyproject affecting their lands or territories and other resources, particularlyin connection with the development, utilization or exploitation of mineral,water or other resources”

- Treaty of Waitangi (1840)


New Zealand

http://www.youtube.com/watch?v=cka5S-VQG2U




Effectiveness

-“If the land is not returned, the New Zealand Government will be exposed infront of the international community as failing to keep its obligations. Itwill seriously dent the country’s credibility throughout the world” DavidRankin

-It is a "total waste of time" for Maori to try make claims under theDeclaration, Acting Prime Minister Bill English (2010)

-Reoccurring theme: Declaration as an aspiring document, lacking authority


Columbia

In many countries UN declarations have no real effect so organizations like Amnesty International have pressured governments in other ways.

http://www.youtube.com/watch?v=_ahkFH_-4sE




Discussion

• What's the point of all this effort if it specifically says it is a non-binding agreement?

• Do you think that Indigenous people should be returned the land for their land claims? And to what extent?

• What effect does this non-binding treaty have if countries like Canada simply state that some provisions don’t apply to them?

• How much authority should indigenous people be given?

• Should criminal be judged by a national court or based on their own cultural values?

• Should indigenous people be given the right to judge criminals based on their own cultural values?


Conclusion


Education

UN Declaration of the Rights of Indigenous Peoples