The constant gardener
United Nations Declaration on the Rights of Indigenous Peoples
Ravi de Costa,
York University
The UN General Assembly Declaration on the Rights of Indigenous Peoples (available at: www.un.org/Docs/asp/ws.asp?m=A/RES/61/295 ) codifies Indigenous rights and makes Indigenous peoples a formal subject of international law. It was borne of the realization, both inside the United Nations System and in wider networks of Indigenous peoples, that Indigenous people cannot rely on existing human rights instruments or the good will of nation-states to recognize and protect their particular livelihoods and rights. Through the late 1980s and early 1990s, representatives of Indigenous peoples worked on the text. The Declaration comprises a preamble and forty-six substantive articles which address Indigenous concerns in a number of areas:
- General principles of Indigenous rights, to self-determination, equality, freedom from discrimination, the right to a nationality and participation in the State, and the right of Indigenous peoples to their distinct cultures and legal systems.
- The physical rights of Indigenous peoples, especially those which have been historically so infringed through forced removals and policies of implicit genocide.
- Indigenous cultural and spiritual identities as well as Indigenous languages.
- The need for educational and other reforms within nation-states to enable Indigenous peoples to enjoy their rights.
- The rights of Indigenous people to participate in economic and social decision-making processes.
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Indigenous rights to lands, waters, and other resources.
- Arrangements by which Indigenous peoples may exercise their right of self-determination in self-governing arrangements.
- The obligations of States and the international community to recognize Indigenous rights and to implement them.
The passage of the Declaration on 13 September 2007, as a resolution of the United Nations General Assembly, came after considerable diplomatic bargaining and revision to the original text proposed by Indigenous peoples. Only four nations (Australia, Canada, New Zealand, and the United States) opposed it. It now stands as a major statement of the distinctive status and rights of Indigenous peoples and the obligations this means for the rest of the world. It should be noted that the Declaration will have little legal force in and of itself: national courts and legislatures will need to respond to it and enforce it. However, the Declaration provides Indigenous peoples with a powerful tool to lobby their governments, to litigate in their courts, and to appeal to the world when their rights are infringed.