Declaration on the Rights of Indigenous

Peoples
The United Nations Declaration on the Rights of Indigenous Peoples was adopted by the
United Nations General Assembly during its 62nd session at UN Headquarters in New York City
on 13 September 2007.
While as a General Assembly Declaration it is not a legally binding instrument under
international law, according to a UN press release, it does "represent the dynamic development of
international legal norms and it reflects the commitment of the UN's member states to move in
certain directions"; the UN describes it as setting "an important standard for the treatment of
indigenous peoples that will undoubtedly be a significant tool towards eliminating human rights
violations against the planet's 370 million indigenous people and assisting them in combating
discrimination and marginalisation."[1]

Purpose
The Declaration sets out the individual and collective rights of indigenous peoples, as well as
their rights to culture, identity, language, employment, health, education and other issues. It also
"emphasizes the rights of indigenous peoples to maintain and strengthen their own institutions,
cultures and traditions, and to pursue their development in keeping with their own needs and
aspirations".[1] It "prohibits discrimination against indigenous peoples", and it "promotes their full
and effective participation in all matters that concern them and their right to remain distinct and to
pursue their own visions of economic and social development". [1][2]

Negotiation and ratification

The Declaration was over 22 years in the making. The idea originated in 1982 when the UN
Economic and Social Council (ECOSOC) set up its Working Group on Indigenous Populations
(WGIP), established as a result of a study by Special Rapporteur Jos R. Martnez Cobo on the
problem of discrimination faced by indigenous peoples. Tasked with developing human rights
standards that would protect indigenous peoples, in 1985 the Working Group began working on
drafting the Declaration on the Rights of Indigenous Peoples. The draft was finished in 1993 and
was submitted to the Sub-Commission on the Prevention of Discrimination and Protection of
Minorities, which gave its approval the following year.
The Draft Declaration was then referred to the Commission on Human Rights, which established
another Working Group to examine its terms. Over the following years this Working Group met
on 11 occasions to examine and fine-tune the Draft Declaration and its provisions. Progress was
slow because of certain states' concerns regarding some key provisions of the Declaration, such as
indigenous peoples' right to self-determination and the control over natural resources existing on
indigenous peoples' traditional lands.[3] The final version of the Declaration was adopted on 29
June 2006 by the 47-member Human Rights Council (the successor body to the Commission on
Human Rights), with 30 member states in favour, two against, 12 abstentions, and three
absentees.[4]
The Declaration was then referred to the General Assembly, which voted on the adoption of the
proposal on 13 September 2007 during its 61st regular session. The vote was 143 countries in
favour, four against, and 11 abstaining.[5] The four member states that voted against were
Australia, Canada, New Zealand and the United States, each of which have large non-indigenous
immigrant majorities and small remnant indigenous populations. The abstaining countries were
Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian
Federation, Samoa and Ukraine; another 34 member states were absent from the vote. [6]
Reaction
Support
In contrast to the Declaration's rejection by Australia, Canada, New Zealand and the United
States, United Nations officials and other world leaders noted their pleasure at its adoption.
Secretary-General Ban Ki-moon described it as a "historic moment when UN Member States and
indigenous peoples have reconciled with their painful histories and are resolved to move forward
together on the path of human rights, justice and development for all." Louise Arbour, a former
justice of the Supreme Court of Canada then serving as the UN's High Commissioner for Human
Rights, expressed satisfaction at the hard work and perseverance that had finally "borne fruit in
the most comprehensive statement to date of indigenous peoples' rights." [2] Similarly, news of the
Declaration's adoption was greeted with jubilation in Africa [7] and, present at the General
Assembly session in New York, Bolivian foreign minister David Choquehuanca said that he
hoped the member states that had voted against or abstained would reconsider their refusal to
support a document he described as being as important as the Universal Declaration of Human
Rights.[8] Bolivia has become the first country to approve the U.N. declaration of indigenous
rights. Evo Morales, President of Bolivia, stated, "We are the first country to turn this declaration
into a law and that is important, brothers and sisters. We recognize and salute the work of our
representatives. But if we were to remember the indigenous fight clearly, many of us who are
sensitive would end up crying in remembering the discrimination, the scorn."

Criticism
Prior to the adoption of the Declaration, and throughout the 62nd. session of the General
Assembly, a number of countries expressed concern about some key issues, such as self-
determination, access to lands, territories and resources and the lack of a clear definition of the
term indigenous. These concerns were expressed by a group of African countries, in addition to
the final four that voted against the adoption of the declaration. Ultimately, after agreeing on
some adjustments to the Draft Declaration, a vast majority of states recognized that these issues
could be addressed by each country at the national level.
The four states that voted against all with historically oppressed and disenfranchised small
indigenous populations far outnumbered by settler populations [9] continued to express serious
reservations about the final text of the Declaration as placed before the General Assembly.

Australia
Australia's government opposed the Declaration in the General Assembly vote of 2007, but has
since endorsed the declaration. Australia's Mal Brough, Minister for Families, Community
Services and Indigenous Affairs, referring to the provision regarding the upholding of indigenous
peoples' customary legal systems, said that, "There should only be one law for all Australians and
we should not enshrine in law practices that are not acceptable in the modern world." [5]
Marise Payne, Liberal Party Senator for New South Wales, further elaborated on the Australian
government's objections to the Declaration in a speech to the Senate as: [10]

Concerns about references to self-determination and their potential to be misconstrued.

Ignorance of contemporary realities concerning land and resources. "They seem, to many
readers, to require the recognition of Indigenous rights to lands which are now lawfully
owned by other citizens, both Indigenous and non-Indigenous, and therefore to have
some quite significant potential to impact on the rights of third parties." [10]

Concerns over the extension of Indigenous intellectual property rights under the
declaration as unnecessary under current international and Australian law.

The potential abuse of the right under the Declaration for indigenous peoples to
unqualified consent on matters affecting them, "which implies to some readers that they
 may then be able to exercise a right of veto over all matters of state, which would include
national laws and other administrative measures." [10]

The exclusivity of indigenous rights over intellectual, real and cultural property, that
"does not acknowledge the rights of third parties in particular, their rights to access
Indigenous land and heritage and cultural objects where appropriate under national
law."[10] Furthermore, that the Declaration "fails to consider the different types of
ownership and use that can be accorded to Indigenous people and the rights of third
parties to property in that regard."[10]

Concerns that the Declaration places indigenous customary law in a superior position to
national law, and that this may "permit the exercise of practices which would not be
acceptable across the boad",[10] such as customary corporal and capital punishments.
In October 2007, former Australian Prime Minister John Howard pledged to hold a referendum
on changing the constitution to recognise indigenous Australians if re-elected. He said that the
distinctiveness of people's identity and their rights to preserve their heritage should be
acknowledged.[11] On April 3, 2009, the Rudd government formally endorsed the Declaration. [12]

Canada
Canada said that while it supported the spirit of the Declaration, it contained elements that were
"fundamentally incompatible with Canada's constitutional framework". [5] In particular, the
Canadian government had problems with Article 19 (which appears to require governments to
secure the consent of indigenous peoples regarding matters of general public policy), and Articles
26 and 28 (which could allow for the re-opening or repudiation of historically settled land
claims).[13]
Minister of Indian Affairs and Northern Development Chuck Strahl described the document as
"unworkable in a Western democracy under a constitutional government." [14] Strahl elaborated,
saying "In Canada, you are balancing individual rights vs. collective rights, and (this)
document ... has none of that. By signing on, you default to this document by saying that the only
rights in play here are the rights of the First Nations. And, of course, in Canada, that's inconsistent
with our constitution." He gave an example: "In Canada ... you negotiate on this ... because
(native rights) don't trump all other rights in the country. You need also to consider the people
who have sometimes also lived on those lands for two or three hundred years, and have hunted
and fished alongside the First Nations."[15]
The Assembly of First Nations passed a resolution in mid-December to invite Presidents Hugo
Chvez and Evo Morales to Canada to put pressure on the Conservative government to sign the
Declaration on the Rights of Indigenous Peoples, calling the two heads of state "visionary
leaders" and demanding Canada resign its membership on the UN Human Rights Council.[16]

New Zealand
New Zealand's Minister of Mori Affairs Parekura Horomia described the Declaration as
"toothless", and said, "There are four provisions we have problems with, which make the
declaration fundamentally incompatible with New Zealand's constitutional and legal
arrangements." Article 26 in particular, he said, "appears to require recognition of rights to lands
now lawfully owned by other citizens, both indigenous and non-indigenous. This ignores
contemporary reality and would be impossible to implement." [17]
In response, Mori Party leader Pita Sharples said it was "shameful to the extreme that New
Zealand voted against the outlawing of discrimination against indigenous people; voted against
justice, dignity and fundamental freedoms for all."[18]
On 7 July 2009 the New Zealand government announced that it would support the Declaration;
this, however, appeared to be a premature announcement by Pita Sharples, the current Minister of
Maori Affairs, as there has been no movement from the New Zealand government apart from a
cautious backtracking on Sharples' July announcement. [19]
United States
Speaking for the United States mission to the UN, spokesman Benjamin Chang said, "What was
done today is not clear. The way it stands now is subject to multiple interpretations and doesn't
establish a clear universal principle."[20] The U.S. mission also issued a floor document,
"Observations of the United States with respect to the Declaration on the Rights of Indigenous
Peoples", setting out its objections to the Declaration. Most of these are based on the same points
as the three other countries' rejections but, in addition, the United States drew attention to the
Declaration's failure to provide a clear definition of exactly whom the term "indigenous peoples"
is intended to cover.[21]

United Kingdom
Speaking on behalf of the United Kingdom government, UK Ambassador and Deputy Permanent
Representative to the United Nations, Karen Pierce, "emphasized that the Declaration was non-
legally binding and did not propose to have any retroactive application on historical episodes.
National minority groups and other ethnic groups within the territory of the United Kingdom and
its overseas territories did not fall within the scope of the indigenous peoples to which the
Declaration applied."[22]