The Grand Council of the Crees

Crees and the Draft Declaration on the Rights of Indigenous Peoples

The Crees and the Draft Declaration on the Rights of Indigenous peoples

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The Draft Declaration on the Rights of Indigenous Peoples was worked over for 11 years by the Working Group on Indigenous Populations in Geneva, and in August, 1993 was delivered to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, with a recommendation that it be approved. The Sub-Commission did approve the Declaration, and it was handed on to the Commission on Human Rights, which, in 1994, set up its own Working Group to consider the Declaration in detail. Since then the Crees have been active in the effort to have the Declaration approved and forwarded eventually to the General Assembly, the aim being to have it approved by the end of this decade.

A dramatic change occurs

The Crees have always believed in the Draft Declaration, and in the Working Group charged with its drafting. On the tenth anniversary of establishment of the Working Group, Ambassador Ted Moses made the following statement:

"What has been the effect of the Working Group? As an indigenous leader, I have been able to observe a very dramatic change. First and foremost, indigenous peoples are now recognized as subjects of international law. It is becoming more difficult for States to claim that indigenous rights matters are purely domestic issues to be resolved internally under municipal law, a claim which was used to discourage international action to resolve indigenous human rights abuses."The very fact of the existence of the Working Group has helped to establish this principle. In addition, the Working Group has encouraged action to recognize and protect indigenous peoples throughout the United Nations System, thus supporting the principle of indigenous peoples as subjects of international law."The main task of the Working Group has been the elaboration of draft standards for the protection of indigenous peoples. This work, directly under the responsibility of the Chairman/Rapporteur, Dr. Erica-Irene Daes, has already had the effect of identifying key issues, the essential or obligatory standards that all States and peoples are expected to respect, even without formal and final approval of a Universal Declaration."In other words, the process itself has effect. And forward-looking States are not waiting for the Declaration before implementing the concepts that are supported by consensus here."The mandate of the Working Group is not limited to standard setting. The Working Group is also responsible for a review of current developments with a view towards the overall interest of the United Nations in the preservation of world peace, and the protection of human rights under the Charter, the Covenants, and the other human rights instruments. I would like to point out the very important role the Working Group plays in this regard."There is no other world body that is empowered or has the capacity to hear the issues we have heard here for the last ten sessions. The Chairman/Rapporteur, in her personal capacity, has been able to respond to a number of the concerns voiced here, and it has been of enormous value. Furthermore, certain matters have been referred to the Sub-Commission, where the interest of that body has served to resolve human rights abuses."I need only refer to the oversight the Working Group and the Sub-Commission gave to the Oka/Kanasatake/Kahnawake situation two years ago in Quebec, Canada. I certainly believe that the concern and interest shown here for the protection of indigenous rights in Canada, saved the lives of some of our people, and I want to express my gratitude."Finally, it is clear to everyone who has been involved in this process, that very little would have been possible without the leadership and courage of Dr. Erica-Irene Daes. It is people and not organizations that make the difference; and Dr. Daes has literally dedicated here= life to the work of defending the rights of the indigenous peoples. This extends far beyond the work of the Working Group. I respect her determination, her intelligence, and her love."In spite of all this, there are some who now say that the mandate of the Working Group is about to end. My answer is that the true mandate of the Working Group is about to begin. The Working Group should have recognition as a more senior body, and the issue of indigenous rights deserves its rightful place on the agenda of the Commission on Human Rights. Indigenous peoples must not be shut out of the United Nations. The issues loom larger, and there now appears to be some international political will to resolve indigenous rights problems.

"Other work remains to be done. The study on treaties between indigenous peoples and States, which the Grand Council of the Crees did so much to promote, must be carefully and faithfully completed. It is important that the United Nations recognize the inviolability of these sacred agreements between sovereign peoples and States."

Roadblocks thrown up by governments

Some of the difficulties experienced in the process of drafting the Delcaration were described in a paper written by Ambassador Moses in 1993 for the Centre d'Étude et de documentation d'Amerique Latin, in Montreal. He wrote that the Working Group which drafted the declaration was "charged with the task of writing new international law on indigenous rights". He added:

"This task has proved somewhat difficult, not because it was difficult to devise human rights standards that should apply to indigenous peoples, but rather because some States have continued to insist that their own domestic laws should define the rights of indigenous peoples. A few States, such as Brazil, India, Canada, and China, do not want the rights of indigenous peoples to be recognized under international law. They do not want the subject of indigenous peoples to be "internationalized". They do not want indigenous peoples to be recognized as "subjects of international law"."These States claim that jurisdiction over indigenous "populations" (they refuse to identify indigenous peoples as "peoples") is exclusively domestic, and they accuse the United Nations of violating their sovereignty and interfering in their internal affairs whenever the issue of indigenous rights is raised at the international level."Canada, and certain other States that are historic abusers of the rights of indigenous peoples, also raise other objections: Canada claims that recognition of our rights as peoples under international law will encourage us to seek independence and assert some kind of national aboriginal sovereignty. Applying this rationale, Canada, Brazil, and others have been working against the setting of new international human rights standards for indigenous peoples at the United Nations and other international fora. These States argue that their own domestic laws already provide adequate protection, and that nothing should be done at the international level that would require these States to amend their own laws...."For eleven years the Working Group consulted with indigenous peoples, United Nations member States, non-governmental organizations, inter-governmental organizations, United Nations agencies, academics, and experts to assist in the preparation of the Draft Declaration. The Grand Council of the Crees...participated at the United Nations in this exercise since 1981. In 1987, the Grand Council of the Crees was granted consultative status by the Economic and Social Council of the United Nations."It is important to bear in mind that the Draft Declaration as submitted by the members of the Working Group...is not a draft prepared by the indigenous peoples themselves. Rather, it is a document produced by a formally constituted United Nations body, a Working Group attached to the Commission on Human Rights, one of the commissions of the Economic and Social Council."Because the Draft Declaration represents the findings of United Nations "experts", who have engaged in extensive and in-depth consultation and research, (it) comes into existence with a particular level of credibility as well as intellectual and moral authority. It is by no means a final document; it is not a declaration, but simply a draft of a proposed declaration. However, it does take into consideration the concerns expressed by member States, and it does largely reflect the concerns raised by the indigenous peoples."It is also useful to note that the very existence of such a document at the United Nations is in itself a recognition of the legitimacy and appropriateness of treating indigenous human rights questions at the international level. When we consider that the International Labour Organization has already approved two international conventions on the Rights of Indigenous and Tribal Peoples (Conventions 107 and 169), and that the United Nations has held numerous seminars, expert, and technical meetings on indigenous rights issues, we begin to understand that indigenous rights questions are finding their place at the international level. The recent declaration by the General Assembly of an International Year of Indigenous Peoples (1993), and the regular consideration by the Sub-Commission of the agenda item titled "Discrimination against indigenous peoples", firmly establishes indigenous peoples as subjects of international law. I believe that the United Nations will not step back from this position."Nevertheless, the Draft Declaration on the Rights of Indigenous Peoples has a long way to go in the United Nations System. It must still be approved by the Sub-Commission; it must then be approved by the Commission on Human Rights; and only then will it be sent to the Economic and Social Council. Once these approvals have been obtained, it will be submitted to the Third Committee of the General Assembly, and finally to the General Assembly itself."Our concern, then, is that the Draft Declaration will survive this process, and that the human rights of the indigenous peoples, so painstakingly described in the Draft, do not themselves become victim to the States that have victimized the indigenous peoples. In particular, the indigenous peoples are most concerned about politically motivated amendments that might be put forward by States to prevent our international rights from being recognized."For the indigenous peoples, this means that we must work to prevent Canada, Brazil, India, China, and other like-minded States from weakening the international recognition of our rights as indigenous peoples, a recognition that is now within reach after hundreds of years of injustice, denial, and dispossession."...It will be informative to examine what I consider to be the most important provision of all:

Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development.

"This article establishes the guiding principle of the entire Declaration: that indigenous peoples may freely chose their own form of government, and that they are free to determine how they conduct economic, social and cultural development, that they are free to determine how they will relate to States."This provision parallels the provisions found in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both part of the International Bill of Rights. The international Covenants recognize that "all peoples" have the right of self-determination. Article I states that "by virtue" of the right of self-determination, all peoples are free to enjoy the wealth of their land and its resources, and that peoples are not to be "denied their own means of subsistence"."Do not fail to note that these rights are already embodied in international law. Under the international Covenants the right of self-determination is directly and permanently liked to ownership and control of land and resources, benefit from the wealth of the land, and at the very least the right to utilize the land to maintain subsistence. Yet these are the very same rights which have been most consistently violated."The indigenous peoples need these protections, which already have the force of international law, and which gain elaboration and specificity in the Draft Declaration on the Rights of Indigenous Peoples. The indigenous peoples must have recourse to a neutral jurisdiction, and the draft Declaration gives shape to the possibility, the hope that the international community will recognize and protect the rights of indigenous peoples."The Draft Declaration recognizes the dignity of the indigenous peoples, our right of self-determination, our right to land, our right to control resources, our right to practise our own religions, our right to manifest our own cultures, our right to our own identity.

"Have no illusions. This Declaration would be very difficult to enforce. In its present form it would be non-binding. But it would establish an appropriately high standard, set a principle, and place the administration of justice for indigenous peoples on a level with other principles of international law and the aspirations of the indigenous people themselves.

Confirmation, not creation, of indigenous rights

Eighteen months later, by the beginning of 1995, the Draft Declaration had been approved by the Sub-Commission, and handed on to the Commission on Human Rights, where it appeared under the agenda heading, Discrimination Against Indigendous Peoples. The Cree view of the Draft Declaration at that time was expressed by Kenny Blacksmith, at that time Deputy Grand Chief of the Grand Council, in a speech to the Commission:

"The deliberations of the Working Group were unusual in that participation was open and broad, consisting of representatives of States, UN agencies, intergovernmental organizations, non-governmental organizations, indigenous peoples organizations and individuals, academic experts, and other interested parities. I want to stress the fact that the Governments participated in the drafting exercise, and that they often did so at a very senior level; and that the Draft tabled at this Commission extensively reflects interventions and recommendations made by governments."The Draft Declaration is not an indigenous document. It is a document produced by an expert United Nations body taking into account various views, other United Nations human rights instruments, and several of the recommendations made by the indigenous peoples themselves."It should be made very clear that the Draft Declaration on the Rights of Indigenous Peoples does not create special rights for indigenous peoples. And in particular, because some government representatives may have been given the impression that it does, it must be stated emphatically, that it does not. The Draft Declaration confirms that the existing United Nations human rights instruments apply equally to the world's indigenous peoples. It confirms that indigenous peoples are indeed subjects of international law, and that indigenous peoples enjoy the protections of international law in keeping with the accepted principle of the equality of all peoples."Please note then, that the Draft Declaration does not extend the rights of indigenous peoples, it simply assures the universality and indivisibility of the principle that all peoples are to fall within the protections that the United Nations has recognized.

"That it was necessary to do this is an unfortunate legacy of the history of DISCRIMINATION and racism against indigenous peoples that we know exists even here. We need a Declaration on the rights of indigenous peoples to finally end this DISCRIMINATION."

Ever since 1995 the Grand Council has been assiduous in pursing the course of the Draft Declaration through the Commission on Human Rights, never failing to challenge those governments that have tried to water down the Draft agreeed and recommended by the Sub-Commission. The following examples give a flavour, and much of the detailed argument, of the interventions made by representatives of the Grand Council on these important matters:

November 1995

Importance of word "peoples":

Ted Moses:

"I listened carefully yesterday to the Statement made by the Canadian delegation, and observed that Canada refused to use the term "peoples" to refer to us despite the fact that the Canadian Constitution refers to us as the "Aboriginal peoples of Canada"."Canada and several other States at this meeting have pointed out that the use of the term "peoples" is controversial, because it might imply the existence of a universal right of self-determination that applies to the indigenous peoples. Canada, and other States have said quite clearly that they do not want to use the word "peoples" in reference to the indigenous peoples, because of the implications that term might have upon the territorial integrity of Canada."Canada and several other States have made clear that they would like to set some special conditions on the recognition of the right of self-determination for the world's indigenous peoples, conditions which would apply to indigenous peoples, but not to the other peoples in the world."So let me say this: To deny people a certain status in order to deny them their human rights is a prohibited form of discrimination. When a State refuses to employ the term "peoples" to refer to indigenous peoples because of the implications in international law of the use of that term, that is prohibited discrimination. In particular, this prohibition would apply if an indigenous people were to be denied its status as a "people" in order to be denied the human right to self-determination. More so, we have the explicit admission of several States that this denial is exactly their intent."The International Convention on the Elimination of Racial Discrimination (CERD) is explicit, forceful, and comprehensive on this issue...The Declaration on Race and Racial Prejudice which was adopted and proclaimed by the General Conference of UNESCO on 27 November 1978 states in Article 2: Racism includes racist ideologies, prejudiced attitudes, discriminatory behaviour, structural arrangements, and institutionalized practices resulting in racial inequality as well as the fallacious notion that discriminatory relations between groups are morally and scientifically justifiable; it is reflected in discriminatory provisions in legislation or regulations and discriminatory practices...'"Therefore, States may not deny indigenous peoples our status as "peoples" under international law in order to deny our inherent right as "peoples" to self-determination."You may not. The text is clear. The prohibition is absolute; and no rationale is permitted to justify or condone this form of prohibited discrimination which is explicitly termed "racial discrimination"."I heard one State say yesterday that in its sovereign capacity it could propose any language it desired. No you may not. You may not practice racial discrimination under the guise of standard-setting at the United Nations. To do so would fly in the face of every principle that has been fought for in the last fifty years in this place."The United States spoke yesterday about "consistency with existing international instruments". I am speaking about the proposal put forward by several States to violate the prohibition against racial discrimination. Is that consistent with international practice? Is that justifiable?"Apartheid was once too thought to be a justifiable form of discrimination. It was the law, and it stood for a time, and no doubt seemed reasonable to some. Those States that propose that the United Nations discriminate against the indigenous peoples by denying our status as "peoples" in order to deny our right of self-determination, have assured themselves that they would never practice racial discrimination against indigenous peoples. Their rationale--the supposed protection of their territorial integrity through this means (which is absurd and unnecessary given the existing prohibitions in international law)--may seem ample justification to these States for what appears to be simply a technical or semantic question--whether or not to employ a particular "controversial" word."No! Mr. Chairman, it is racial discrimination in its most classical and insidious sense. It is done by stealth, false notions, and misrepresentation. It denies the equality of all peoples. It singles us out for discriminatory treatment. It promotes notions of racial superiority. It uses the law of the international community to engage in a form of racial discrimination which is against the most fundamental principle of human rights--our humanity, our equality. You may not do it; and I and the other indigenous peoples will fight and expose whoever would try. We have no choice to do otherwise, Mr. Chairman." November 23, 1995Human rightsProf. Craig Scott, University of Toronto, representing the Grand Council:"The ...Draft Declaration is about recognition and about being human. It is about the right to be recognised as human whatever one's difference, rather than having difference serve as a basis for exclusion from the rights to which all humans are supposed to be universally entitled."Human rights have developed within the United Nations through a constant attention to two questions. The first question: what interests are so important that they are worthy of protection as universal values? We can call this the FREEDOM question. The second question: who is worthy of recognition as being fully human? We can call this the EQUALITY question."In fact, the content of human rights has evolved as a kind of constant dialogue between this freedom question and this equality question. Freedom says there should be a right to vote; equality replies: then, how can you exclude women? Freedom says that there should be a right to protection from physical harm; equality asks: so, why do you exclude children? Freedom says that there is a right to a fair hearing; equality responds: then, how is it that you can exclude refugees? Freedom says that there should be a right to health; equality replies: then, why is it that the poor are excluded? Freedom says that there should be fair working conditions; equality asks: how can it be that this right is less available to migrant workers?"For a half century, through the processes of the United Nations, freedom has also said that peoples have the right to self-determination. All peoples. The prevailing understanding at the time of the drafting of the UN Charter -- and I would emphasise that this was the understanding of the states that dominated that process -- was that the right of peoples to self-determination contained in the Charter was, in essence, another way of referring to the right of the populations of current states (a good number of them colonial powers) to their sovereignty. Their own sovereignty. Almost from the first day after the adoption of the UN Charter, equality began to ask questions. The answers were always resisted at first, but, with time, the moral force of the equality argument resulted in the gradual inclusion of previously-excluded societies within the prevailing understandings of who are entitled to be regarded as peoples."However, the lines of arbitrary exclusion were not erased. They merely shifted. The understanding of colonialism was artificially narrowed to include only the most recent wave of colonisation, primarily in Africa and Asia. In the meantime, old and new states began to argue that self-determination after de-colonisation was to mean either the right of populations of entire states to freedom from external domination and interference, or the right of entire populations to freedom from non-democratic rule (as defined as liberal representative democracy of the one-person, one-vote kind). A few further concessions were made, namely in the case of minority racist rule (Namibia, South Africa, Rhodesia) and also in the case of the Palestinian people who the U.N., in the late 1960s, began to treat as a people and no longer as merely falling in the category of refugees."But the moral force of the argument based on equality and consistency cannot be kept forever barricaded behind arbitrary lines that continue to divide the world into the human and the not-so-human. Self-determination of peoples, as the U.N. has many times declared, is a HUMAN right (a collective human right contrary to the view advanced by the honourable Delegate of Japan this morning that the United Nations has only ever recognised the existence of the rights of individuals). Yet, some peoples are still being viewed as benefiting from this right while others, including peoples who are also indigenous peoples, are not."Some are human; some are not. Harsh as it sounds, this is what it amounts to. Some state delegations would argue that other human rights categories are more appropriate, such as the rights of "minorities" or of "people" or simply of "individuals". These delegations are obviously sincere in their belief that this does treat indigenous persons and peoples as fully human. Yet, I would urge delegates to see that this kind of categorical allocation is ultimately a form of categorical denial. It is a denial of indigenous peoples' own self-conception, fundamental to their members' identity (their identity as individuals, I might emphasise) and a denial of the inconvenient social, historical and political fact of their peoplehood. In the end, it amounts to a form not just of non-recognition, but, more seriously, of misrecognition."And there can be no doubt that the substitution of the word "people" for the word "peoples" would be a profound case of misrecognition. It is not simply a question of Members of the United Nations wishing to avoid certain feared implications of a right to self-determination, namely a right to secede from existing states -- a fear to which I shall return. But it is also a question of using a term which, in English in any case, is the plural form of the word "person" or the word "individual". As such, the word "people" denies the collective dimensions of indigenous rights which collective rights are fundamental to many indigenous communities and are certainly central to the Draft Declaration that is currently before us."Earlier, Ambassador Moses...drew the attention of the Working Group to the definition of racial discrimination found in Art. 1(1) of the Convention on the Elimination of Racial Discrimination. This definition must surely be regarded as reflective of a customary legal obligation on all states. It reads: "In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, and cultural or any other field of public life."The exclusion of indigenous peoples from the status of "peoples" has at least the effect of creating discriminatory access to the special kind of freedom that other peoples enjoy, namely that of the human rights to self-determination. It is important to acknowledge that, for many members of state delegations in this room, the struggle against racial discrimination is simultaneously a profound personal commitment and a central plank of state policy. And the United Nations itself has played a role of high leadership over the decades on the question of racial discrimination, notably in relation to helping rid the world of (second wave) colonialism and apartheid. Once they are made aware that the exclusion of indigenous peoples from the right to self-determination (the HUMAN right to self-determination, it bears repeating) is a distinction that is discriminatory, Member States of the United Nations will surely wish to rectify this inconsistency of treatment. They will want to make such a rectification, not least because they will realise that what at one point is discriminatory only in effect will become discriminatory in purpose if a conscious decision has been taken not to remedy such effects-based discrimination once the existence of the exclusionary effects has been made known to them."Many states are of course resisting the recognition of the right to self-determination because they understand that right to entail a right to secede and to do so unilaterally. International law on self-determination nowhere says that all peoples have the right to secede from existing states by virtue only of the right to self-determination. In this respect, we are all perhaps living a bit too much in the past...."It is important to note, in this regard, that indigenous peoples have often sent a message, both in the past and here at this meeting, that, for some reason, has not been heard by a number of state delegations. If one listens, you can often hear the message that the right of a people to self-determination is not a right for that people to determine its status without consideration of the rights of other peoples with whom they are presently connected and with whom they will continue to be connected in the future. For we must realise that peoples, no less than individuals, exist and thrive only in dialogue with each other. Self-determination necessarily involves engagement with and responsibility to others (which includes responsibility for the implications of one's preferred choices for others) Self-determination thus has a necessary procedural dimension: the need and the requirement in an interdependent world for peoples to negotiate peacefully and in good faith the ways in which their respective jurisdictional powers and obligations are to be allocated and also are to interact, as interact they necessarily must."We have to move beyond the unimaginative, indeed sterile, view that peoples' rights to self-determination are mutually exclusive and the view that, somehow, recognition by one people of another people's right, entails the exclusion of the first people's own rights. In this regard, it does not help to hold onto certain dichotomies. According to such dichotomies, either you are this people or you are that people, not, Heaven forbid, both. Either you are within this state's jurisdiction or you are outside this state's jurisdiction, not, Heaven forbid, both. This kind of approach to the question of self-determination is a recipe for futility and even, I fear, conflict. We need to begin to think of self-determination in terms of peoples existing in relationship with each other. It is the process of negotiating the nature of such relationships which is part of, indeed at the very core of, what it means to be a self-determining people. Viewed in this light, express recognition of the right of indigenous peoples to self-determination represents not a threat but, rather, an opportunity for the United Nations and its Members to help set a new constructive spirit for our all-to-turbulent times.

"It is precisely in this spirit that I would ask, urge, indeed plead, with delegations of the gathered states in this room to approach the task before it. The Draft Declaration is perhaps the most representative document that the United Nations has ever produced, representative in the sense that its normative statements reflect, in a more than token way, the experience, perspectives, and contributions of indigenous peoples. In a word, it is a document that was produced in a decade-long spirit of equal dialogue and mutual recognition. "

20 November-1 December 1995

November 28, 1995

Economic and social rights

Ted Moses:

"The Working Group, during its dozen years of deliberation, had the opportunity to consider...the practical experiences of indigenous peoples in their situations in various countries. The information that emerged did not present a pretty picture; and it is well for States to understand that it was obvious that existing international protections and national constitutional regimes simply did not accomplish the purpose of providing adequate protection for the rights of indigenous peoples."The present Declaration is based on this knowledge, which is factual in content, and I might point out part of the bitter memories of many of us."Article 19 applies to the right of indigenous peoples to participate in local, regional, and national governments, if they so choose. This provision is here because, as everyone should know, we are, and have been excluded from such participation in various ways. In Canada we are prevented from participation by electoral boundary manipulations called "gerrymandering". In other countries which I have visited, violence and murder are the standard method. It is important to point out that indigenous peoples do not give up their own rights to participate in their own decision-making process because they may choose to take part in national or regional governments."Article 20 is fundamental: it requires the free and informed consent of indigenous peoples before they are subjected to administrative or legislative measures. These are normal and reasonable democratic requirements, which in Canada at the present time are not respected. This is one substantive element of the right of self-determination.

"Article 21 reflects the content of...the International Covenants that a people may not be denied its own means of subsistence. Unfortunately, the history of indigenous peoples in the Americas is essentially the history of the denial of our means of subsistence through dispossession, and more recently through destruction of the environment. This is one of the most essential provisions in the Declaration."

November 28, 1995

Land and Resources

Ted Moses:

"For the Crees in our territory of Eeyou Astchee this part of the Declaration represents the "guts" because we are a hunting people, and the land is both our home and our source of food. We are probably best known for our struggle against irresponsible hydro-electric development in our territory--our battle with Hydro-Quebec and the Provincial government in Quebec. This is an effort to both protect the Cree way of life, and to ensure our continued survival as a hunting people. Our territory of Eeyou Astchee, which has long supported us, is now subject to many forms of attack by people and governments who see only its political or economic value, and whose understanding of land use is based only on this view."The articles in Part VI are all grounded in the unfortunate experiences our peoples have had with governments. This is not old history. It is continuing history with murder and dispossession now replaced by clear-cutting, mining, and dam building; and sometimes, the murder continues. Our interests are very straightforward. We have the right in existing international law to control and benefit from our own resources. This right is consistently denied or abused on the pretext that it infringes on the powers of the State."Somehow, indigenous peoples are excluded not only from control and administration of their own lands, but they are also denied the benefit of the resources that are removed from their lands."In Canada, for example, the land rights of the Lubicon Crees have been denied, but government seems to have had little difficulty assigning the timber resource rights on Lubicon land to a Japanese paper manufacturer. Similar developments are taking place in our territory."National and regional laws have not prevented these human rights violations and abuses. We need a more "disinterested" legal regime; and we hope that this Declaration will provide a standard that will stand above what is considered "legal" at the local and regional levels of government.

November 28, 1995

Self-government and indigenous laws

Ted Moses:

"We have often heard during the past several days comments from States regarding the compatibility of the Declaration on the Rights of Indigenous Peoples and the constitutions or laws of particular States. One State or another claims to have difficulty with one or another provisions of the Declaration because it ostensibly is not compatible with a particular law in that State."France, for example, claims that it recognizes no collective rights in its constitution, and therefore can not approve collective rights in an international instrument. Other States make the dubious claim that there are no collective rights in any international instruments. These States want to do nothing here which goes beyond their own conceptions and points of view regarding law and its philosophical grounding in the individual, or in society, or in concepts of natural justice or whatever."Meanwhile, back at home--at my home--our rights are being violated, and justice is not being served. There is a kind of "standoff" here--States not wishing to be bound by anything but their own laws (and sometimes not even by their own laws)--and the need to conclude international standards which go beyond existing law which is obviously, and tragically insufficient to prevent existing rights abuses."Part VII attempts to go beyond this impasse, by defining the relationship between indigenous institutions and State governments. Article 31, for example, provides one example and one means for the exercise of the right of self-determination in States which respect the indigenous right of self-determination. Thus, self-government is a means of expressing self-determination when this is the choice of the indigenous people concerned, where it is not imposed by the State, and where the State in its exercise of democratic institutions respects the full right of self-determination of all peoples.I"n closing, I want to underline the importance for the Grand Council of the Crees to the observance of treaties, which is the subject of Article 36. We demand that treaties between indigenous peoples and States be respected by State parties, and that unilateral abrogation of treaties be prevented. The present attempt by the Province of Quebec to leave Canada through a declared insurrection against the federal government would involve a direct and flagrant violation of a treaty with the Crees. Canada has not expressed the intention to defend our rights under the Canadian Constitution, which provides specific treaty guarantees. It is in such cases that international standards are required to protect the rights of indigenous peoples."

November 30, 1995

Implementation of the Declaration

Ted Moses:

"Part VIII concerns...issues relevant to the practical realization of the Declaration on the Rights of Indigenous Peoples. As indigenous peoples we are all too familiar with paper promises that go nowhere and achieve nothing."The Declaration is based on our experience of serious rights abuse. It is our hope and expectation that the approval of the Declaration will lead to real improvements in the respect for our rights, and that indigenous peoples will finally be accorded our proper status and be able to enjoy the full measure of rights to which all peoples are entitled."Although this is a declaration and not a convention, we consider it appropriate, nevertheless, to provide for implementation machinery. The non-binding and aspirational nature of a declaration, notwithstanding; the very nature of the peoples and communities this Declaration is expected to protect and assist, requires effective communication and dissemination of information. Our communities are often in remote and isolated locations, and this has added to the difficulty of protecting indigenous peoples from abuse of their human rights....

"Several States have taken exception to the expectation that they will help to finance the realization of the rights articulated in this Declaration. Allow me to point out that States have accumulated great wealth from the exploitation of our lands and territories, and that it seems reasonable to expect support from governments which have so benefited, and have in many instances destroyed the economic base of the indigenous communities. The obvious alternative is to return our lands and resources, and to allow us to support ourselves."

October, 1996

Preamble and Fundamental Rights

Ted Moses:

"Briefly, the preamble reiterates the equality of all peoples, including indigenous peoples. It recognizes the contribution that indigenous peoples make to the family of mankind, and it strongly and categorically rejects racism, discrimination and other forms of discrimination."It recognizes that indigenous peoples have been, and continue to be denied the recognition of their rights, and have been harmed as a consequence. This provides the basic rationale for a Declaration on the Rights of Indigenous Peoples to be made by the General Assembly of the United Nations."The remainder of the preamble is a statement about the positive recognition and implementation of universal human rights that would contribute to the restoration of the indigenous peoples' place in the world, and right to share equally in its wealth, in its care, and in its control--for these things go together. In consequence, it points out that all peoples have the right of self-determination, and that the Declaration may not be used to deny self-determination to any peoples. Finally it states that the Declaration is one positive step toward reconciliation with indigenous peoples. The Declaration on the Rights of Indigenous Peoples is simply a much needed step to bring indigenous peoples into the embrace of the community of nations and peoples."The preamble is well drafted, I would even say beautifully drafted. It contains many of the sentiments and values that mankind holds highest."As indigenous peoples, we always speak of the letter, spirit, and intent of written legal texts, because of the importance of the oral tradition of our peoples. We consider it essential to set out at the beginning the intent and spirit of the Declaration, therefore a great deal of work went into discussion of the preamble. A careful reading of the preamble would serve to dispel many of the concerns being expressed by States with regard to the Declaration, its intent, and legal consequences."The members of the working group will recognize much of the language contained in the preamble, which is taken directly from existing international human rights instruments. The preamble confirms the purpose of the Declaration--as one government said yesterday, to confirm that indigenous peoples benefit from the protections of international human rights law."Article 1 attaches the rights of indigenous peoples to international law. It confirms, if that should be necessary, that indigenous peoples are subjects of international law. I should think that would be obvious. But if there is any doubt, article 1 stands to settle it."Article 2 continues the recitation of universal human rights that belong to all peoples, including indigenous peoples. One State suggested that the second half of article 2 is redundant and unnecessary. That this is the case with some parts of the Declaration--it should not be necessary to state these things in a Declaration. Unfortunately, there is overwhelming experience that tells us that we have to confirm the obvious. So we insist on the present wording. It gives us some peace of mind."Article 42 states that the Declaration is a recitation of minimum standards, since no international instrument is ever meant to place limits on the positive recognition of human rights or the attainment of improved standards. The Declaration is said to be a minimum standard, however, for an additional reason: It is the product of prolonged debate and compromise."Several States reiterated during drafting in the Working Group on Indigenous Populations that language should be chosen to make it easier to obtain approval by the United Nations and subsequent ratifications by States. The members of the Working Group made this choice, often over the objections of the indigenous peoples. This may help to explain why we are so concerned with changes that could be made at this stage that would in our view in effect be compromises of compromises already reached. The Declaration, after all, is a declaration. It should have some strength and conviction, even if it is not binding and enforceable. How else can we build respect and hope for progress toward the aspirations it contains?"Article 43 guarantees against gender discrimination. Canada was ordered by the United Nations Human Rights Committee in the Lovelace Case under the Optional Protocol to amend its Indian Act which protected the practice of gender discrimination against indigenous women within Canada's own national laws. Gender discrimination is not an indigenous concept, but we do encounter it, so we need article 43, which text, I might add, was proposed by Canada."Article 45 causes problems for one State delegation that expressed the view that it wanted to consider article 45 ad referendum, subject to the final and agreed wording of the Declaration. I should think that article 45 would and should be valid no matter what is contained in the Declaration. It says essentially that nothing in the Declaration may be used against the Charter of the United Nations. What is wrong with that?"Finally, I want to comment on the issue raised first by France yesterday to the effect that all rights are individual rights, and thus by implication that there are no collective rights, or no need for collective rights. This is a point of view and philosophy that could be, and is the subject of many university seminars; so we will not settle it here today. It represents only one point of view, a reductionist Western point of view, and is not universally accepted."Indigenous peoples need the recognition and protection of their collective rights. When rights are attacked, when racial discrimination is practised, it is directed against groups. Individuals suffer the pain, that is true. But they suffer because they are perceived by their attackers as members of a group."During the Vichy regime in France, laws were passed requiring the arrest of Jewish people. The rights that these individuals possessed as persons under French law did not, in the circumstance, serve to protect them. They had done nothing wrong as individuals, and therefore could not defend themselves as individuals. Their crime was to be part of a collectivity that was condemned."When France supports the rights of le Francophonie, it is defending collective rights not individual rights. When it makes promises in this same spirit to the Province of Quebec, it is in recognition of collective language and cultural rights. Canadian law already protects the right of persons in Canada to freely utilize the French and English languages.

"Indigenous peoples have suffered the abuse and denial of their rights both as individuals and as collectivities. The cold war is over; we should end that old and foolish debate about the individual and society."

October 96

Relocations and land

Ted Moses:"Article 10 is concerned with forcible relocation and removal of a people from their lands and territories. Why is there such an article in the Declaration on the Rights of Indigenous Peoples? The answer is quite straight forward. Our peoples and communities have been time and time again expelled from our lands or have had our communities relocated without our consent. Surely this is a violation of international law. Relocation and removal is so often practiced against indigenous peoples and communities that it has become one of the major human rights violations against our peoples which most urgently needs to be addressed. In most cases indigenous peoples have been expelled from their lands without warning, without due process of any kind, and without any means for redress and compensation."When relocation processes are formalized by governments, the reasons given for the relocation are often false or intentionally misleading. Governments often serve the interests of developers by removing indigenous peoples from their lands in order to facilitate mining activities, hydro-electric flooding, military use, or other activities incompatible with continued use by indigenous peoples."I will cite today the case of the Ouje-Bougoumou Crees who had their community bulldozed eleven (11) times because of mining activity in their territory. Neither the government of Canada nor the Province of Quebec intervened in any of these instances to protect the rights of the indigenous peoples. It was only after years of effort that the Ouje-Bougoumou People were able to have a permanent community of their own."Consider also the case of Ipperwash. The Canadian military took this indigenous land for temporary use during the Second World War. It has still not been returned."It is clear that there should be no forced removals and relocations. Full and informed consent is required. How can it be any other way? And if this is an imposition upon States, how much more of an imposition is it for indigenous peoples to be removed from the territories they have occupied since time immemorial?"Article 25 is intended to preserve and strengthen the relationship that indigenous peoples have with their lands and territories. The text reflects the intimate association between the lands and the resources that indigenous peoples use. It connects use of land and resources with the responsibility to care for and preserve those resources for future generations. Thus it reflects that fact that despite thousands of years of land use, indigenous peoples have preserved the productive capacity of the earth. "The language in the text, "which they have traditionally owned or otherwise occupied or used" is employed so as to avoid the technical objection speciously put forward by some States, that indigenous peoples have no proper title to their lands, and therefore no land rights."Article 26 elaborates and implements article 25. It sets out the rights to own, develop, and control land and territory; and it specifies the scope of this ownership and control including the "total environment".... It includes the right to development, the right to manage resources, and the right to be protected from encroachment or other attacks on these rights. It also reflects the need to recognize the indigenous social and legal concepts which have been so successful in protecting these lands and resources until the present time.

"It surprises and offends me when I discover that some governments have difficulty with these articles. The Crees have done a good job protecting lands and resources for at least 5000 years. Yet some governments balk at the notion that we have a right to manage and benefit from these resources now. Yet these same governments have no hesitation entering into agreements with mining and forestry corporations, often foreign controlled, to extract these resources, leaving behind, as barren or flooded lands, the territories we have so faithfully preserved."

October, 1996

Restitution of stolen lands, control over development

Ted Moses:

"Article 27 concerns the restitution of lands, territories, and resources to the indigenous peoples. I know this is considered controversial, but let us see what it really contains."There is a saying: A thief never rests comfortably and securely with his loot. The reasons are self-evident. If something is obtained under questionable circumstances, the ownership and title is tainted. How did the States come into possession and control of indigenous lands and territories that now make up their national territories? What legal face has been placed upon this history? Some States claimed the racist notion of terra nullius, others claimed using the concept of "conquest", still others took control through treaties which were later broken or nullified. States continue to use the power of "extinguishment" to wrest land from the original indigenous owners. States justify extinguishment of "native" or indigenous title with the argument that it is necessary to "obtain certainty" regarding the sovereignty of the State over the lands and territories occupied and used by indigenous peoples for thousands of years."Having used the "sovereignty" and "certainty" arguments to justify extinguishment, however; the States then go on to claim that extinguishment also ends the indigenous peoples' ownership, possession, and beneficial use of their own lands and territories. How is this possible, and why should it be necessary if a State's only justifiable interest is to confirm sovereignty over its claimed territory?"The function of article 27 is to reverse the process of dispossession. It does not send the non-indigenous occupiers back to their homelands, rather it establishes a process of restitution that leads to the removal of the taint upon the sovereignty of the State, and seeks to return where ever possible, ownership to the original owners. Where this is not possible, compensation with the consent of the indigenous peoples is a defined resolution."What is so controversial and unreasonable about that?"Article 28 may appear to treat many seemingly unrelated issues: environment, military activities, productivity, and health. However, there is a unity of theme in this article that is quite pragmatic. Destruction of the environment, contamination with hazardous waste, military desecration of indigenous lands, and indigenous health problems, are all, unfortunately, part of the continuing destruction of the total environment, lands and territories of the indigenous peoples.Several years ago the Crees coined the term "environmental racism" to explain the concept that exploitation could be done on and to indigenous lands which would never be considered or tolerated elsewhere. Waste can be dumped, low-level supersonic military fighter aircraft can train, huge mining developments can be undertaken, vast territories can be flooded for hydro-generation of electricity; and all of this is easily possible on lands where indigenous peoples live. In fact these lands are usually described as "uninhabited wastelands" so why should anyone care?"Article 28 attempts to set standards which would prevent this abuse, and which would seek to reverse the damage already caused to indigenous lands and indigenous peoples' health."Article 30 on resource development is of particular concern to the Crees. Our territory, Eeyou Astchee, was flooded and contaminated by the massive 1975 James Bay Hydroelectric Project. This project was initiated without our consent, and without any social or environmental audit. Neither Canada nor the Province of Quebec defended our right to protect our lands and way of life."The Cree experience in James Bay, is repeated every day against some indigenous people somewhere in the world. This "development syndrome" is quite characteristic: Indigenous peoples are "in the way" and must be removed. The rights of the indigenous peoples are never given paramountcy. The ownership of indigenous peoples is denied. The resource rights are designated for others. Indigenous peoples are forced to move out of the way. They have no share of ownership or control. Indigenous land use is disregarded. The indigenous way of life is discounted, deprecated, and denied. There may or may not be some very meagre form of compensation offered, but nothing commensurate with the value of the resource that is taken. The indigenous peoples are told: "There is nothing here of value for you, nothing of economic worth."

"Article 30 attempts to reverse the development syndrome to include the indigenous peoples, who have the right to give or withhold consent. Why should it be any other way?"

October, 1996

Law and Policy-making

Ted Moses:"Some recent Supreme Court decisions in Canada hold the position that the right of the indigenous peoples to practice their way of life is frozen in time to our first contact with Europeans. The practical effect of such constraint upon our right to development would place us in a position of progressive disadvantage over time, and force our assimilation with the larger society which has an unlimited right to extract and consume. Implicit in the court's decisions is the notion that we lost our right to govern at the very moment that Europeans first laid eyes on us. Why should that be true? Or let me ask another way: What is the underlying assumption?"It seems evident that the underlying theory is one of racial superiority--that Europeans have a natural right to rule, to govern, and to regulate society. From the first moment of their contact with us our rights somehow disappear, and our original ownership becomes, at that magical instant of first contact, only a usufruct..... We have the right to carry on all of the functions of our societies--political, social, and economic--and we have the right to continue to develop and evolve, just as any people have this right."Article 21 is particularly important in that it recognizes that the indigenous peoples have been denied their means of subsistence, and it confirms the right to be secure in our own means of subsistence. This is of course entirely consistent with existing human rights standards."Canada asked yesterday how far back the right of compensation in article 21 might be rooted. This is an interesting and useful question; and we can suggest several possible approaches. We can ask: How far back does the law extend? It seems that the courts often make reference to very old jurisprudence in British Common Law, and that age does not invalidate the legal thesis even of Magna Carta. Indeed by comparison, the events that could require compensation occurred in the relatively recent past. Some events that might require compensation are taking place at this very moment: deforestation, toxic contamination, flooding, compulsory relocation. Other events took place perhaps two or three hundred years ago."We can also answer the question another way: Are indigenous peoples at a continued disadvantage because of the harm done to them? Would compensation be able to remedy or alleviate partially or fully the harm done? Are States the continued beneficiaries of the dispossession of the indigenous peoples? If the answer to all of these questions is in the affirmative, then States should be required to provide appropriate compensation regardless of the time past. We think the answer is clearly in the affirmative. The damage has carried forward to the present generations; compensation would be a remedy; and States have the means and ability to effect compensation.

"It was also suggested that such a compensation regime should not be applied retroactively, because international law is not applied retroactively. This, if you will excuse me, makes nonsense of the notion of compensation, which is always retroactive by definition. In any case, the obligation to compensate for dispossession is not new international law. We have already said: The Declaration is not new international law; it is a confirmation that international law protects the rights of indigenous peoples, as well it should."

October, 1996

Respect for treaties

Ted Moses:

"The Grand Council of the Crees has a particular interest in article 36, which provides that States should respect and implement the treaties they enter into with indigenous peoples. This is just one of those instances when we have to ask why there should be any question at all concerning respect of treaties. Is it not the very solemn nature of treaties that they must be respected? Yet the common experience is that States make treaties with indigenous peoples only to break them a short time later."Upon first contact with indigenous peoples, States made treaties of peace and friendship to obtain desperately needed protection and support from us. Later, as the settlers gained ascendency through power and number, the terms of the treaties being made changed. The treaties facilitated the movement of populations into our territories, but treated with us as sovereign peoples, and guaranteed the protection of our rights. Later treaties dispossessed us through extinguishment of our land rights, and were often entered into under duress.

"The James Bay Crees and Inuit entered into a treaty with Canada and the Province of Quebec in 1975. Although parts of that treaty have been respected and implemented, large and crucial parts of the treaty remain unimplemented twenty-one (21) years later. We refer to our treaty with Canada as the first "modern broken treaty".

"Article 36 requires States to respect their legal obligations. But it also provides for a means to settle treaty disputes at the international level. This is essential because at present the State acts as the judge of its own acts. The sheer number of broken treaty provisions suggests that the State is a very lenient judge of its own acts. The conflict of interest that States have in attempting to reach a final settlement on treaty disputes with indigenous peoples at the level of municipal law is glaring and obvious. The very existence of dispute resolution mechanisms at a higher level would, we think, help to obtain respect for these instruments."