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POINT OF VIEW
- Organization
of American States
- Working Group
to Prepare the Draft American
- Declaration on
the Rights of Indigenous Peoples
- Washington,
D.C.
- 10-12 November
2003
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- Joint
Position of the American Indian Law Alliance, Grand Council of the
Crees (Eeyou Istchee), Tetuwan Oyate Teton Sioux Nation Treaty
Council, and Na Koa Ikaika Kalāhui Hawai’i
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CONSOLIDATED TEXT OF THE DRAFT DECLARATION PREPARED BY THE CHAIR OF
THE WORKING GROUP
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- PROPOSED
REVISIONS TO SECTION FOUR: ORGANIZATIONAL AND POLITICAL RIGHTS
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Note: The revisions suggested below are an initial response to the
“Consolidated Text of the Draft Declaration Prepared by the Chair of
the Working Group”, OEA/Ser.K/XVI, GT/DADIN/doc.139/03, 17 June 2003
(hereafter “Chair’s Consolidated Text”). As highlighted in its
“Introduction”, the Consolidated Text “has not been subject to
consultations or negotiation”. It has not been approved by the any
entity within the OAS, member States or Indigenous peoples. In our
respectful view, it has no preferred or legal status.
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The OAS General
Assembly has indicated that a “final phase of negotiations” would
start from the Chair’s Consolidated Text. As numerous Indigenous
peoples and organizations have emphasized to date, this approach
raises a host of basic problems and concerns. In particular,
Indigenous representatives have not finished analyzing and discussing
the IACHR Proposed Declaration on the Rights of Indigenous Peoples.
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It is critical
that Indigenous representatives from all regions of the Americas have
full and effective participation at all stages of the OAS
standard-setting process relating to Indigenous peoples’ status and
rights. States have no legitimate mandate to “negotiate” our human
rights – especially when these negotiations are defined as
“exclusively” among themselves.
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Further, any
Declaration proposed or adopted by the OAS must fully respect the
Purposes and Principles of the Charter of the United Nations.
Therefore, any existing draft provision or suggested change by States
or other participants in the standard-setting process that would fail
to wholly respect the prohibition against racial discrimination or
would otherwise undermine the human rights of indigenous peoples must
be firmly rejected. As our revisions make clear, the Chair’s
Consolidated Text does not currently adhere to these crucial
standards.
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The common
objective is to ensure that the rights of Indigenous peoples affirmed
in any OAS Declaration constitute the minimum standards for the
survival, dignity and well-being of the indigenous peoples of the
Americas. In no case should these standards fall short of those in the
draft United Nations Declaration on the Rights of Indigenous
Peoples (hereafter “draft U.N. Declaration”).
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The OAS
Declaration should also be fully compatible with the status, rights
and aspirations of indigenous peoples, e.g. as reflected in the
Declaration of the Indigenous Peoples Summit of the Americas,
2001.
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Full citations of
all authorities referred to are provided at the end of this
submission.
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Text (with
proposed revisions) |
Explanatory
notes |
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SECTION FOUR:
ORGANIZATIONAL AND POLITICAL RIGHTS
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Article XIX. Rights
of association, assembly, freedom of expression and thought
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1. Indigenous
peoples and individuals have rights of association,
assembly, organization, opinion and expression, without
interference and in accordance with their values, usages, customs,
ancestral traditions, beliefs, and spirituality.
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The proposed
revision ensures that rights and freedoms in para. 1 of Art. XIX
of the Chair’s Consolidated Text applies to all Indigenous
individuals (not only those who are “members” or “citizens” of an
Indigenous people).
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We propose
adding “opinion” to this list of rights, especially in relation to
Indigenous peoples. The right to freedom of opinion and expression
is already recognized for individuals in the Universal
Declaration of Human Rights, Art. 19; the International
Covenant on Civil and Political Rights, Art. 19; and the
International Convention on the Elimination of All Forms of Racial
Discrimination, Art. 5(d)(viii).
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The right of
association of all individuals is recognized in the Universal
Declaration of Human Rights, Art. 20; the International
Covenant on Civil and Political Rights, Art. 22; and the
International Convention on the Elimination of All Forms of Racial
Discrimination, Art. 5(d)(ix).
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The right of
assembly of all individuals is recognized in the Universal
Declaration of Human Rights, Art. 20; the International
Covenant on Civil and Political Rights, Art. 21; and the
International Convention on the Elimination of All Forms of Racial
Discrimination, Art. 5(d)(ix).
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1a.
Indigenous peoples and individuals have the right to associate
freely for ideological, religious, political, economic, labor,
social, cultural, sports, or other purposes.
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In regard to
Art. XIX of the Chair’s Text, we propose a new para. 1a that
elaborates on the nature and scope of the right to freely
associate. The wording in this new para. reflects the American
Convention on Human Rights, Art. 16(1): "Everyone has the
right to associate freely for ideological, religious, political,
economic, labor, social, cultural, sports, or other purposes."
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1b. The
right to freedom of opinion and expression includes freedom to
hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of
frontiers.
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In regard to
Art. XIX of the Chair’s Text, we also propose a new para. 1b that
elaborates on the nature and scope of the right to freedom of
opinion and expression. The wording in this new para. reflects the
Universal Declaration of Human Rights, Art. 19; and the
International Covenant on Civil and Political Rights, Art. 19.
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See also
“Declaration of Principles on Freedom of Expression”, approved by
the Inter-American Commission on Human Rights during its 108th
regular session, 3rd preambular para.: “… the right to
freedom of expression is essential for the development of
knowledge and understanding among peoples, that will lead to a
true tolerance and cooperation among the nations of the hemisphere
…”
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Declaration of
Chapultepec,
adopted by the Hemisphere Conference on Free Speech, Mexico City,
1994, Principle 1: “No
people or society can be free without freedom of expression and of
the press. The exercise of this freedom is not something
authorities grant, it is an inalienable right of the people.”
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Universal
Declaration on Democracy,
adopted without a vote by the Inter-Parliamentary Council at its
161st session, Cairo, 16 September 1997, Principle 21: “The state
of democracy presupposes freedom of opinion and expression; this
right implies freedom to hold opinions without interference and to
seek, receive and impart information and ideas through any media
and regardless of frontiers.”
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2. Indigenous
peoples have the right of assembly and to the use of
their sacred cultural and ceremonial sites.
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With the
revisions indicated, we support para. 2 of Art. XIX of the Chair’s
Text.
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3.
Indigenous peoples have the right to maintain full contact, bonds,
and common activities with their members who inhabit the territory
of neighboring States.
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In regard to
para. 3 of Art. XIX of the Chair’s Text, we propose that it be
deleted and replaced with a comprehensive provision (see Art. XIXA
below).
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to maintain and develop contacts, relations, etc. with our
“members” or “citizens” cannot be limited to “neighboring States”.
This right would be more limited than that exercised by most
individuals, in relation to their family members living in
different regions of the globe.
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Further, we
have a right to maintain and develop international contacts, etc.
with other Indigenous peoples. Such contacts, etc. are essential
in an era of increasing globalization.
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4. The States
shall adopt measures aimed at facilitating the exercise of the
rights recognized in this article, mindful of the rights of third
persons.
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It is proposed
that para. 4 of Art. XIX of the Chair’s Text be deleted. Instead,
we suggest that States’ obligations and Indigenous peoples’ input
and participation should be addressed in terms of the
implementation of the whole Declaration under Section Six -
”General Provisions”. In this regard, we propose the following:
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For matters
relating to indigenous peoples’ human rights, States’ obligations,
implementation of this Declaration, and related reforms,
indigenous peoples have the right to full, direct and effective
participation at the international and national levels. Procedures
shall be devised in conjunction with indigenous peoples, so as to
ensure that any measures adopted are with the prior, free and
informed consent of the peoples concerned.
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Article XIXA. International contacts, relations, cooperation, etc.
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This is a
proposed new Article, addressing the right of Indigenous peoples
to maintain and develop transnational contacts, etc. for
political, economic, social, cultural, spiritual, environmental
and other purposes.
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Indigenous
peoples, in particular those divided by international borders,
have the right to maintain and develop contacts, relations and
cooperation, including activities for spiritual, cultural,
political, economic, social, environmental and other purposes,
with their own citizens and with other peoples across borders.
States shall take effective measures to ensure the exercise and
implementation of this right.
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The proposed
new para. reflects the draft U.N. Declaration on the Rights of
Indigenous Peoples, Art. 35. These international contacts,
etc. of Indigenous peoples are essential in an era of increasing
globalization. They are also an important manifestation of
international cooperation, openness and democracy that is vital to
a wide range of Indigenous affairs.
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Article XX.
Right to self-government
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1. Indigenous
peoples, as a specific form of exercising their
right of self-determination have the right to autonomy or
self-government with respect to, inter alia, culture,
language, spirituality, education, information, communications,
health, housing, employment, social well-being, community and
regional security, family relations, economic activities,
lands, territories and resources, environment,
development, entry of non-citizens, and ways and means
of financing these self-governing jurisdictions.
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In no case
should the affirmation of the right to self-determination
be linked to the right of self-government, in the manner done in
para. 1 of Art. XX of the Chair’s Consolidated Text. In
particular, we propose that the phrase “in the exercise of the
right to self-determination” be replaced with “as a specific form
of exercising their right of self-determination”.
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The proposed
revisions are consistent with the draft U.N. Declaration on the
Rights of Indigenous Peoples, Art. 31.
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It is
suggested that the phrase “within the States” be deleted from the
Chair’s Text. As drafted, para. 1 of Art. XX of the Chair’s Text
strongly implies that the right of Indigenous peoples to
self-determination is limited to “internal” aspects within a state
– not the full right of self-determination under international
law. This would violate the principle of “equal rights and
self-determination of peoples” and the prohibition against racial
discrimination.
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See, for
example, F. Przetacznik, “The Basic Collective Right to
Self-Determination of Peoples and Nations as a Pre-Requisite to
Peace” (1990) 8 N.Y.L.Sch. J. of H. Rts. 49, at p. 55: “Both
the internal and external aspects of the right to
self-determination of peoples and nations are constitutive and
inseparable elements of this basic collective human right.”
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U.N.
Sub-Commission on Prevention of Discrimination and Protection of
Minorities, Study of the Problem of Discrimination Against
Indigenous Populations: Vol. V, Conclusions, Proposals and
Recommendations, (1986) (J. Martínez Cobo, Special
Rapporteur), para. 581:
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It must also
be recognized that the right to self-determination exists at
various levels and includes economic, social, cultural and
political factors. In essence, it constitutes the exercise of
free choice by indigenous peoples who must, to a large extent,
create the specific content of this principle, in both its
internal and external expressions, which do not necessarily
include the right to secede from the state in which they live and
to set themselves up as sovereign entities. [emphasis added]
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In light of
its central importance, the right of Indigenous peoples to
self-determination under international law must be affirmed in a
separate para. under Section Two on “Human Rights”. This is what
we have proposed in Art. VIA of the present draft Declaration. In
order to avoid creating a lesser and discriminatory standard
relating to Indigenous peoples, the wording in Art. VIA must not
derogate from the two international human rights Covenants, Art.
1.
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2. Indigenous
peoples have the right to full and effective participation
without discrimination in decision-making at all levels, in
relation to matters that may directly affect their rights, lives,
and destiny. They may do so either directly or through their
representatives elected or otherwise selected by them in
accordance with their own procedures. They also have the right to
maintain and develop their own indigenous decision-making
institutions and legal systems, while retaining the
right to full and effective participation, if they
so choose, in the political, economic, social and cultural life of
the state.
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The proposed
revisions are consistent with the draft U.N. Declaration on the
Rights of Indigenous Peoples, Art. 19:
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Indigenous
peoples have the right to participate fully, if they so choose, at
all levels of decision-making in matters which may affect their
rights, lives and destinies through representatives chosen by
themselves in accordance with their own procedures, as well as to
maintain and develop their own indigenous decision-making
institutions.
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See also draft
U.N. Declaration, Art. 4: "Indigenous peoples have the
right to maintain and strengthen their distinct political,
economic, social and cultural characteristics, as well as their
legal systems, while retaining their rights to participate fully,
if they so choose, in the political, economic, social and cultural
life of the State."
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Article XXI.
Indigenous law and jurisdiction
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1a. Indigenous
peoples’ fundamental status, rights and law are inextricably
linked to international law. Relations and disputes between
indigenous peoples and States are not matters to be determined or
resolved through recourse solely to national law.
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We propose a
new para. 1a for inclusion in Art. XXI of the Chair’s Consolidated
Text. In order to provide an accurate and balanced legal framework
in the draft Declaration, it is critical to highlight that
Indigenous peoples’ status, rights and law are inseparably linked
to international law. This historical and contemporary reality is
greatly reinforced by the ever-increasing significance of
international human rights law.
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See, for
example, I/A Comm. H.R., Mary and Carrie Dann v. United States,
Report No. 113/01, at para. 124: “… in addressing complaints of
violations of the American Declaration it is necessary … to
consider those complaints in the context of the evolving rules and
principles of human rights law in the Americas and in the
international community more broadly, as reflected in treaties,
custom and other sources of international law. … [T]his broader
corpus of international law includes the developing norms and
principles governing the human rights of indigenous peoples.”
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Declaration of
Machu Picchu on Democracy, the Rights of Indigenous Peoples and
the Fight Against Poverty,
Lima – Machu Picchu, 2001, Art. 8: “Our states are duty-bound to
safeguard and guarantee the enforcement of all the provisions of
the American Declaration of the Rights and Duties of Man, the
American Convention on Human Rights and the other regional and
international instruments in force, in order to ensure the full
and effective exercise of the human rights of indigenous peoples
in accordance with the principle of nondiscrimination.”
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Draft U.N.
Declaration on the Rights of Indigenous Peoples, preamble:
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Encouraging
States to comply with and effectively implement all international
instruments, in particular those related to human rights, as they
apply to indigenous peoples, in consultation and cooperation with
the peoples concerned,
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Emphasizing
that the United Nations has an important and continuing role to
play in promoting and protecting the rights of indigenous peoples
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H. Berman,
"Perspectives on American Indian Sovereignty and International
Law, 1600 to 1776", in O. Lyons & J.C. Mohawk, eds., Exiled in
the Land of the Free: Democracy, Indian Nations, and the U.S.
Constitution, 1992, at pp. 126-127:
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... the
specific relationship that each nation initially established with
the United States was born of the principles and practices of
international law, and was typically defined through the treaty
process.
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Obviously
then, the links between past and present are of central importance
to any analysis of indigenous rights.
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U.N.
Sub-Commission on Prevention of Discrimination and Protection of
Minorities, Study on treaties, agreements and other
constructive arrangements between States and indigenous
populations (M. Alfonso Martínez, Special Rapporteur, Final
Report), 1999, at p. 18, para.
112: “In the course of history, the newcomers … nevertheless
attempted to divest indigenous peoples … of their sovereign
attributes, especially jurisdiction over their lands, recognition
of their forms of societal organization, and their status as
subjects of international law.”
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Judicial
decisions by the highest court in both Canada and the United
States recognize that indigenous peoples were treated, in
international terms, as independent nations by European States:
see, for example, Worcester v. Georgia, 31 U.S. (6
Pet.) 515 (1832), at p. 559; R. v. Sioui, [1990] 1
S.C.R. 1025, at pp. 1052-1053.
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Right Honourable Beverley McLachlin, P.C. Chief Justice of Supreme
Court of Canada,
“Aboriginal Rights: International Perspectives”, Vancouver,
British Columbia, February 8, 2002: “Aboriginal rights from the
beginning have been shaped by international concepts. … Whether we
like it or not, aboriginal rights are an international matter.
Different countries may take different approaches to particular
problems. But underlying the differences, one finds considerable
consensus on the fundamental principles.”
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Declaration of
the Indigenous Peoples Summit of the Americas,
2001,
para. 1: “The
fundamental collective human rights of Indigenous Peoples as
Peoples including particularly our right of self-determination,
must be recognized and respected in accordance with international
law.”
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See also A.
Cassese, International Law (Oxford/N.Y.: Oxford University
Press, 2001), at p. 166: “… international law no longer
constitutes a sphere of law tightly separate and distinct (subject
to one or two exceptions) from the sphere of the law of national
legal systems. … It no longer constitutes a different legal realm
from the various municipal systems, but has a huge daily direct
impact on these systems. It conditions their life in many areas
and even contributes to shaping their internal functioning and
operation. In addition, many international rules address
themselves directly to individuals, without the intermediary of
national legal systems …”
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1. Indigenous
peoples’ status, rights, and law shall be recognized and
respected as a fundamental part of national and
international legal systems and an essential
framework to ensure their integrity and well-being as distinct
peoples and their ongoing development according to their
own aspirations, values, priorities, and needs.
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The proposed
revisions in para. 1 of the Chair’s Consolidated Text underline
the overall significance of Indigenous peoples’ status, rights and
law in national and international legal systems. Our suggested
revisions also seek to ensure the integrity, ongoing development
and well-being of Indigenous peoples.
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See also
Declaration of Machu Picchu on Democracy, the Rights of Indigenous
Peoples and the Fight Against Poverty, Lima – Machu Picchu,
2001, Art. 7: “Accordingly, we firmly support every effort to
promote and safeguard the rights and fundamental freedoms of
indigenous peoples … We state our resolve to safeguard these
rights as part of public policy and pursuant to the constitutional
and legal provisions in force in our countries.”
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Indigenous and
Tribal Peoples Convention, 1989,
Art. 2, para. 1: “Governments shall have the responsibility for
developing, with the participation of the peoples concerned,
co-ordinated and systematic action to protect the rights of these
peoples and to guarantee respect for their integrity.”
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American
Convention on Human Rights,
Art. 5: “Every person has the right to have his physical, mental,
and moral integrity respected.”
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Declaration of
the Indigenous Peoples Summit of the Americas,
2001,
para. 4: “States
in the Americas must not invoke the particularities of their own
legal and political system as an excuse for refusing to recognize
and respect the human rights of Indigenous Peoples. This is
especially important in regard to the territorial, land and
resource rights, including subsoil rights, of Indigenous Peoples.”
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See also
Alexkor Ltd. and Another v. Richtersveld Community and
Others, Case CCT 19/03, judgment rendered by Constitutional
Court of South Africa,14 October 2003, para. 50:
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The nature and
the content of the rights that the Richtersveld Community held in
the subject land prior to annexation must be determined by
reference to indigenous law. That is the law which governed its
land rights. Those rights cannot be determined by reference to
common law. The Privy Council has held, and we agree, that a
dispute between indigenous people as to the right to occupy a
piece of land has to be determined according to indigenous law
“without importing English conceptions of property law.”
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2. Indigenous
peoples have the right to maintain, reinforce and
control their own legal systems and apply them to
their populations, territories, lands, resources, environment, and
other affairs. States shall recognize and respect the laws,
decisions and rulings of indigenous institutions.
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Any disputes
between indigenous peoples and States, or between indigenous
peoples themselves, relating to issues of jurisdiction or rights
shall be resolved peacefully and in good faith, through mutually
acceptable and fair procedures, in a manner consistent with
principles of co-existence, mutual respect, justice, democracy and
respect for human rights.
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to Indigenous peoples’ legal systems, it is inaccurate and
insufficient for para. 2 of Art. XXI of the Chair’s Text to apply
such systems to “internal matters in their communities”. Such an
approach fails to fully consider the implications of globalization
and the increasing international dimensions of Indigenous peoples’
roles, responsibilities and rights.
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the proposed revisions affirm a broad range of rights and
jurisdictions of Indigenous peoples consistent with our right to
self-determination and self-government. At the same time, the
revisions emphasize corresponding State obligations to respect the
laws, decisions and rulings of Indigenous institutions.
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In addition, a
new para. is proposed to provide for peaceful resolution in a
principled manner of any disputes relating to matters of
jurisdiction and rights. It is foreseen that current or future
disputes may be between Indigenous peoples and States, or between
Indigenous peoples themselves.
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3. The matters
referring to indigenous persons or to their interests in the
jurisdiction of each State shall be conducted so as to provide for
the right of the indigenous to full representation with dignity
and equality before the law, and, if necessary, the use of
interpreters.
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In cases where
State jurisdiction applies, procedures involving indigenous
peoples or individuals, or their rights and
interests, shall be conducted in such a way as to ensure their
right to full representation with dignity, as well as their
right to equality before the law and equal protection of
the law without any discrimination. This shall include observance
of indigenous law and custom, use by the indigenous peoples or
individuals concerned of their language and, where necessary,
the use of interpreters.
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The proposed
revisions in regard to para. 3 of Art. XXI of the Chair’s Text are
neutral, in that they do not presume that States automatically
have jurisdiction over Indigenous peoples or individuals in any
given matter. Also, procedures concerning both Indigenous peoples
and individuals are contemplated.
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Aside from the
“right to equality before the law”, the revised text adds the
“right to equal protection of the law without any discrimination”.
Similarly, see the American Convention on Human Rights,
Art. 24; International Covenant on Civil and Political Rights,
Art. 26; and the International Convention on the Elimination on
All Forms of Racial Discrimination, preamble.
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4. The States
shall take measures to reinforce the legal status and
judicial capacity of the indigenous peoples and
to
establish their jurisdictions, and to coordinate
them with all other jurisdictions, as appropriate. In
addition, the States shall take measures to ensure that the
judiciary is knowledgeable of and applies indigenous law and
custom, and to ensure that it is taught in the law schools.
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It is proposed
that para. 4 of Art. XXI of the Chair’s Text be revised. In
particular, it is important to reinforce in national legal systems
the full legal status of Indigenous peoples. In addition, it would
be inaccurate to indicate that Indigenous peoples’ jurisdictions
need to be “established” in national legal systems rather than
confirm our inherent jurisdictions.
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It is
important to emphasize that it would be highly inappropriate for
States to resolve all of these matters unilaterally. Therefore, we
suggest that States’ obligations and Indigenous peoples’ input and
participation be addressed through an umbrella provision that
contemplates the implementation of the whole Declaration under
Section Six -
”General Provisions”. In this regard, we propose the following:
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For matters
relating to indigenous peoples’ human rights, States’ obligations,
implementation of this Declaration, and related reforms,
indigenous peoples have the right to full, direct and effective
participation at the international and national levels. Procedures
shall be devised in conjunction with indigenous peoples, so as to
ensure that any measures adopted are with the prior, free and
informed consent of the peoples concerned.
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Article XXII.
Coordination of State and indigenous legal and organizational
systems
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It is proposed
that the title of Art. XXII of the Chair’s text be revised to more
accurately reflect the “coordination” of State and Indigenous
legal and organizational systems.
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1. The States
shall facilitate the inclusion, within their national
organizational structures
, as appropriate, of the
traditional and other institutions and practices of the
indigenous peoples, in conjunction with and with the
prior, free and informed consent of the peoples
concerned.
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In regard to
para. 1 of Art. XXII of the Chair’s Text, it is proposed that
collaboration with States occur in a manner that is wholly
inclusive of Indigenous peoples and that respects the principle of
“prior, free and informed” consent.
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Of course, a
more comprehensive and efficient approach for all of Art. XXII
would be to address States’ obligations and Indigenous peoples’
input and participation through an umbrella provision that
contemplates the implementation of the whole Declaration. We
propose such an Article for inclusion under Section Six - ”General
Provisions”, as follows:
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For matters
relating to indigenous peoples’ human rights, States’ obligations,
implementation of this Declaration, and related reforms,
indigenous peoples have the right to full, direct and effective
participation at the international and national levels. Procedures
shall be devised in conjunction with indigenous peoples, so as to
ensure that any measures adopted are with the prior, free and
informed consent of the peoples concerned.
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2. The
relevant institutions of each State that serve the indigenous
peoples, as well as their respective public policies, shall be
designed in conjunction with and with the participation of
the peoples concerned to reinforce and promote the identity,
culture, traditions, organizations, and values of those
peoples.
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In order to
effectively include Indigenous peoples’ identity, cultures, etc.
in relevant State institutions, it is proposed for para. 2 of Art.
XXII of the Chair’s Text that these bodies be designed in
“conjunction with” the peoples concerned. This emphasizes the need
for close collaboration if common objectives are to be attained.
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Universal
Declaration on Democracy,
adopted without a vote by the Inter-Parliamentary Council at its
161st session, Cairo, 16 September 1997, Principle 22: “The
institutions and processes of democracy must accommodate the
participation of all people in homogeneous as well as
heterogeneous societies in order to safeguard diversity, pluralism
and the right to be different in a climate of tolerance.”
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3. Indigenous
peoples have the right to participate fully, if they so choose,
through procedures determined by them, in devising legislative or
administrative measures that may affect them. States shall obtain
the free and informed consent of the peoples concerned before
adopting and implementing such measures.
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In regard to
Art. XXII, we propose a new para. 3 that reflects the draft
U.N. Declaration on the Rights of Indigenous Peoples, Art. 20.
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See also
Indigenous and Tribal Peoples Convention, 1989, Art. 6: “1. In
applying the provisions of this Convention, governments shall: (a)
consult the peoples concerned, through appropriate procedures and
in particular through their representative institutions, whenever
consideration is being given to legislative or administrative
measures which may affect them directly …; 2. The consultations
carried out … shall be undertaken, in good faith and in a form
appropriate to the circumstances, with the objective of achieving
agreement or consent to the proposed measures.”
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Article XXIII.
Treaties, agreements, and constructive arrangements
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Indigenous
peoples have the right to the recognition, observance, and
enforcement of the treaties, agreements, and other
constructive arrangements concluded with States,
their predecessors or successors, in good faith and
according to their original spirit and intent;
and States have a solemn obligation to honor and respect such
treaties, agreements, and constructive arrangements. Conflicts and
disputes that cannot otherwise be settled shall be submitted to
the competent international bodies for effective remedy, in
accordance with principles of justice, fairness and good faith.
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It is proposed
that a number of revisions be made in regard to Art. XXIII of the
Chair’s Consolidated Text.
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In regard to
treaties, etc., “good faith” is an essential and well-established
principle in both international and domestic law. See, for
example, Nuclear Tests (Australia v. France), [1974] I.C.J.
Rep. 253 at p. 267; and Delgamuukw v. British Columbia,
[1997] 3 S.C.R. 1010 at p.1123.
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Moreover,
“good faith” is also an important contributor to the establishment
and maintenance of harmonious relations between Indigenous peoples
and States. As confirmed in the Charter of the Organization of
American States, Art. 3(c), the principle of good faith must
govern all relations among States.
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The proposed
changes also include a direct reference to the “solemn obligation”
of States to honor and respect treaties, etc. This obligation is
fundamental to any treaty, etc. with Indigenous peoples. Otherwise
the purpose for entering into such agreements would not exist.
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In regard to
the draft Declaration, it would be unjust and regressive for any
State to seek to limit the remedies of Indigenous peoples to
competent “domestic” bodies. The treaties, etc. relating to
Indigenous peoples generally involve basic human rights issues.
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For this
reason alone, treaty violations are already the rightful subject
of international/regional scrutiny and complaints. See, for
example, I/A Comm. H.R., Mary and Carrie Dann v. United States,
Case Nº 11.140, Report No. 113/01, para. 124. It would be
outrageous to argue that human rights issues should be excluded
from resolution by competent international/ regional bodies,
simply because they were included in a treaty between Indigenous
peoples and States.
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Moreover, it
has been confirmed in a U.N. study that, unless otherwise agreed
to by Indigenous peoples, our treaties rightfully belong “in the
realm of international law”: see U.N. Sub-Commission on Prevention
of Discrimination and Protection of Minorities, Study on
treaties, agreements and other constructive arrangements between
States and indigenous populations (M. Alfonso Martínez,
Special Rapporteur, Final Report), E/CN.4/Sub.2/1999/20,
22 June 1999, at p. 30, para. 194.
For all of the above reasons, the reference to “competent bodies”
must necessarily include international/regional bodies, based on
existing international law.
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The reference
to an “effective remedy” for violations of Indigenous peoples’
fundamental rights is consistent with the basic objectives of
treaties, etc., as well with existing principles in both
international and domestic law. See, for example, International
Covenant on Civil and Political Rights, Art. 2, para. 3;
Universal Declaration of Human Rights, Art. 8;
International Convention on the Elimination of All Forms of Racial
Discrimination,
Art. 6; and
Declaration on
the Right and Responsibility of Individuals, Groups and Organs of
Society to Promote and Protect Universally Recognized Human Rights
and Fundamental Freedoms,
1999, Annex, Art. 9. It is important to note that all States in
the Americas are committed to “seek to promote and give effect to”
this latter Declaration: see Summit of the Americas, 2001, Plan
of Action, heading 2 (Human rights and fundamental freedoms).
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- LIST OF
AUTHORITIES
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International instruments, studies, etc
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American
Convention on Human Rights,
O.A.S.Treaty Series No. 36, 1144 U.N.T.S. 123 entered into force July
18, 1978, reprinted in Basic Documents Pertaining to Human Rights
in the Inter-American System, OEA/Ser.L/V/I.4 Rev.9 at 27, 31
January 2003
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Charter of the
Organization of American States,
119 U.N.T.S. 3, entered into force December 13, 1951, amended
721 U.N.T.S. 324, entered into force Feb. 27, 1990
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Declaration of
Chapultepec,
adopted by the Hemisphere Conference on Free Speech, Mexico City,
March 11, 1994, subsequently endorsed by at least 28 heads of state in
the Americas
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Declaration of
Machu Picchu on Democracy, the Rights of Indigenous Peoples and the
Fight Against Poverty,
Lima – Machu Picchu, July 28-29, 2001, adopted by the Presidents of
the member states of the Andean Community (Bolivia, Columbia, Ecuador,
Peru, and Venezuela). Reprinted in OEA/Ser.K/XVI,
GT/DADIN/doc.34/01, 29 October 2001
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“Declaration of
Principles on Freedom of Expression”, approved by the Inter-American
Commission on Human Rights during its 108th regular session
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Declaration of the
Indigenous Peoples Summit of the Americas,
adopted by representatives of Indigenous peoples, nations and
organizations from the North, Central and South Americas and the
Caribbean meeting in Ottawa, Canada, March 31, 2001
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Declaration on the
Right and Responsibility of Individuals, Groups and Organs of Society
to Promote and Protect Universally Recognized Human Rights and
Fundamental Freedoms,
U.N.G.A. Res. 53/144, U.N. Doc. A/RES/53/144, 8 March 1999, Annex
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Indigenous and
Tribal Peoples Convention, 1989,
I.L.O. Convention No. 169, I.L.O., 76th Sess., reprinted in
(1989) 28 I.L.M. 1382
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International
Convention on the Elimination of All Forms of Racial Discrimination,
660 U.N.T.S. 195, (1966) 5 I.L.M. 352. Adopted by U.N. General
Assembly on December 21, 1965, opened for signature on March 7, 1966,
and entered into force on January 4, 1969
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International
Covenant on Civil and Political Rights,
G.A. Res 2200 (XXI), 21 U.N. GAOR, Supp. (No. 16) at 52, U.N. Doc.
A/6316, Can. T.S. 1976 No. 47 (1966). Adopted by the U.N. General
Assembly on December 16, 1966 and entered into force March 23, 1976
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International
Covenant on Economic, Social and Cultural Rights,
G.A. Res. 2200 (XXI), 21 U.N. GAOR, Supp. (No. 16) at 49, U.N. Doc.
A/6316 (1966); Can. T.S. 1976 No. 46 (entered into force 3 January
1976, accession by Canada 19 May 1976)
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Proposed American
Declaration on the Rights of Indigenous Peoples,
OEA/Ser/L/ V/.II.95, Doc. 6, 26 February 1997 (approved by the
Inter-American Commission on Human Rights on February 26, 1997, at its
95th regular session, 1333rd meeting)
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Summit of the
Americas, 2001, Plan of Action, adopted at the Third Summit of
the Americas, Québec City, Canada, April 22, 2001
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United Nations
Declaration on the Rights of Indigenous Peoples
(Draft), in U.N. Doc. E/CN.4/1995/2; E/CN.4/Sub.2/1994/56, 28 October
1994, at 105-115, reprinted in (1995) 34 I.L.M. 541
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U.N.
Sub-Commission on Prevention of Discrimination and Protection of
Minorities, Study of the Problem of Discrimination Against
Indigenous Populations: Vol. V, Conclusions, Proposals and
Recommendations, U.N. Doc. E/CN.4/Sub.2/1986/7/Add. 4 (1986) (J.
Martínez Cobo, Special Rapporteur)
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U.N.
Sub-Commission on Prevention of Discrimination and Protection of
Minorities, Study on treaties, agreements and other constructive
arrangements between States and indigenous populations (M. Alfonso
Martínez, Special Rapporteur, Final Report), E/CN.4/Sub.2/1999/20,
22 June 1999
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Universal
Declaration of Human Rights,
U.N.G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948). Adopted by
the U.N. General Assembly on December 10, 1948
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Universal
Declaration on Democracy,
adopted without a vote by the Inter-Parliamentary Council at its 161st
session, Cairo, 16 September 1997 (Inter-Parliamentary Union, Geneva,
Switzerland)
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Books, articles, etc.
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H. Berman,
"Perspectives on American Indian Sovereignty and International Law,
1600 to 1776", in O. Lyons & J.C. Mohawk, eds., Exiled in the Land
of the Free: Democracy, Indian Nations, and the U.S. Constitution
(Santa Fe: Clear Light Publishers, 1992) 125
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A. Cassese,
International Law (Oxford/N.Y.: Oxford University Press, 2001)
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Right Honourable Beverley McLachlin, P.C. Chief Justice of Supreme
Court of Canada,
“Aboriginal Rights: International Perspectives”, Order of Canada
Luncheon, Canadian Club of Vancouver, Vancouver, British Columbia,
February 8, 2002
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F. Przetacznik,
“The Basic Collective Right to Self-Determination of Peoples and
Nations as a Pre-Requisite to Peace” (1990) 8 N.Y.L.Sch. J. of H. Rts.
49
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Cases
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Alexkor Ltd. and
Another
v. Richtersveld
Community and Others, Case CCT 19/03, judgment rendered by
Constitutional Court of South Africa, 14 October 2003
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Delgamuukw
v. British Columbia, [1997] 3 S.C.R. 1010 (Supreme Court of
Canada)
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I/A Comm. H.R.,
Mary and Carrie Dann v. United States, Case Nº 11.140, Report No.
113/01
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Nuclear Tests
(Australia v. France),
[1974] I.C.J. Rep. 253 (Merits)
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R.
v. Sioui, [1990] 1 Supreme Court Reports 1025
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Worcester
v. Georgia, 31 U.S. (6 Pet.) 515 (1832)
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