The Grand Council of the Crees

Background to Cree Involvement in the UN Declaration...

Background to Cree involvement in the UN Declaration on the Rights of Indigenous Peoples

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In 1982 the United Nations Economic and Social Council (ECOSOC) approved resolution 1982/34 which called for the preparation of international standards regarding the human rights of indigenous peoples.This was the culmination of a long effort to gain recognition in the international community for issues regarding indigenous peoples. Two important non-governmental meetings at the UN in Geneva in 1977 and 1981, and the monumental Martinez-Cobo Report on discrimination against indigenous peoples, prepared by Dr. Augusto Williamsen-Diaz, were the immediate precursors to this resolution.This resolution led to the establishment by the Commission on Human Rights of a Working Group under the Sub-Commission on Prevention of Discrimination and Protection of Minorities. This is known as the Working Group on Indigenous Populations (WGIP). The term "populations", was employed rather than the term "peoples", because certain States argued that the term "peoples" as used in existing UN human rights instruments, would imply that indigenous peoples have the right of self-determination. They thus intentionally denied the status of the indigenous peoples in order to deny the rights that would flow from that status. Although this is a prohibited form of discrimination under international law, the practice continues to the present time --- the UN itself practicing the racial discrimination it prohibits.The WGIP completed its draft Declatation on the Rights of Indigenous Peoples in 1993 and sent it to the Sub-Commission for approval. The Sub-Commission approved the Draft and formalized the name of the document as the "United Nations Declaration on the Rights of Indigenous Peoples".Normally, this Declaration would have been sent on to the Commission on Human Rights for approval and transmission to ECOSOC and the General Assembly.Instead, because of the opposition of certain States opposed to the recognition of the rights of indigenous Peoples, the approval process was blocked in the Commission on Human Rights, which instead decided to "elaborate" its own version of the Declaration. The Commission agreed to utilize the Declaration as approved by the Sub-Commission as its text during the drafting exercise. But it is under no obligation to retain the present text in the version that it may eventually "elaborate".The Commission established its own working group for this purpose. This Working Group held its third meeting in Geneva from 27 October to 7 November 1997.This Declaration is very important for indigenous peoples in every part of the world. It sets international standards regarding respect for the human rights for the world's indigenous peoples. (The term "standard" refers to the basic international rules of behaviour regarding respect for human rights. The work is called "standard-setting", and is intended to establish basic minimum requirements that would hold from country to country throughout the world, notwithstanding, national legal systems).The Declaration, as drafted, confirms that indigenous peoples have rights which belong to all peoples according to existing international human rights instruments.In particular, the indigenous peoples? right to self-determination is conrirmed according to international law.The right of self- determination contains many other human rights, including the right of peoples to enjoy and benefit from their own national resources. It also confirms that a people may "not be denied their own means of subsistence". (Article 1 of both International Covenants state that these rights arise "by virtue" of the right of self-determination).The Declaration being negotiated in Geneva also contains (among other rights) confirmation of indigenous peoples' right to land, resources, and protection of the environment. It is a comprehensive document which confirms basically that indigenous peoples have significant rights under international law.Some governments (including Canada), have attempted to claim that indigenous peoples are a matter only of domestic (the term applied in international law is "municipal"), or national law. In previous years the Government of Canada strongly opposed the recognition of the rights of indigenous peoples in international law. Of late, Canada has somewhat softened its views. But Canada remains hesitant to support the full recognition of the rights of indigenous peoples at the international level, although progress is being made in this regard.Yet the very process of setting of standards regarding the human rights of indigenous peoples in Geneva, confirms that Indigenous peoples are subjects of international law, and that they should benefit from all of the relevant protections in international law.Some countries object strongly to the recognition of indigenous peoples as subjects of international law. In particular, these countries do not want to recognize that indigenous peoples have the right of self-determination, and they oppose the recognition of indigenous land rights. These countries have taken the position that the text of the Declaration as it is presently drafted must be changed.Canadian Foreign Minister Lloyd Axworthy towards the end of 1997 told the national aboriginal leaders that indigenous organizations should be open to the idea of accepting (or negotiating) changes in the text of the Declaration (that is, the text as approved by the Sub-Commissi6n on Prevention of Discrimination and Protection of Minorities) if they want the Declaration to be approved by the United Nations.Indigenous peoples, on the other hand, have made it clear on several occasions that they do not want any changes made to the present text and there is a strong consensus on this issue among indigenous leaders throughout the world.Indigenous representatives point out that the present text was the subject of negotiations for over twelve years, and that during that time governments insisted upon and obtained many changes in the text before it was proposed by the WGIP and approved by the Sub-Cominission.The text is the work of a United Nations expert body. (The WGIP and the Sub-Commission are comprised of expert members appointed by UN member States. The Commission is comprised of diplomats acting on the instructions of their governments.) Thus the text is not the work of the indigenous peoples themselves, who have no representation on the WGIP. As such, the present text already reflects many compromises and is far more flexible and accommodating to governments than a text that would have been drafted by indigenous peoples themselves acting in their own best interests.The present text reflects a minimum standard of human rights protection that is intended to prevent existing abuses against the human rights of indigenous peoples and it was arrived at after consideration by the WGIP of considerable evidence of serious and persistent human rights abuses against indigenous peoples. Indigenous peoples, therefore, cannot accept changes to the text which would "water down" the substance of the present Declaration.It is the position of indigenous leaders that the present text is acceptable to most countries that have a genuine respect for human rights, and that those States that object to the present text would not do so if they were to have a full understanding of its intent and application. There are, of course, certain States that oppose fundamentally the recognition of anv rights for indigenous peoples. A history of human rights abuses makes these States easy to identify.In view of this, it is important for indigenous representatives to meet with diplomats at the United Nations to exchange views and provide relevant information.It is particularly important to dispel the myth that indigenous peoples seek recognition of the right of self-determination so that they can declare independence and reclaim the territories from which they have been historically dispossessed. This idea was at one time circulated by Canada, and is still being argued by some States. Others claim that the indigenous people will use land rights to prevent all development, and will use their rights to create states within States or to nullify national laws. France, and certain other countries, argue that it would be dangerous and contrary to international practice to recognize collective as opposed to individual rights.There have been several resolutions at various levels within the UN system that call for the Declaration to be approved sometime within the International Decade of Indigenous Peoples. The expectation is that the Declaration will take four or five years more, before it reaches the General Assembly.The representatives of indigenous peoples have much work to do to keep that process alive.

Several related projects regarding the international rights of indigenous peoples are active, for example: The draffing and approval of an indigenous rights instrument in the Inter-American Court system of the Organization of American States (OAS), the creation of a Permanent Forum for Indigenous Peoples in the UN, the International Decade, the report of the Special Rapporteur on Indigenous Land Rights, the report of the Special Rapporteur on Treaties between Indigenous Peoples and States, the ratification of the International Labour Office (ILO) Convention 169 on Indigenous and Tribal Peoples, and the report of the Special Rapporteur on the Intellectual Property of Indigenous Peoples.