United Nations Draft Declaration on the Rights of Indigenous Peoples

Ravi de Costa, McMaster University

The UN General Assembly Draft Declaration on the Rights of Indigenous Peoples (available at: www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.CN.4.Sub.2.RES.1994.45.En?Opendocument) is an attempt to codify Indigenous rights and to make 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. There are eight parts to the existing Draft:

• Part I enunciates 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.
• Part II affirms the physical rights of Indigenous peoples, especially those which have been historically so infringed through forced removals and policies of implicit genocide.
• Part III protects Indigenous cultural and spiritual identities as well as Indigenous languages.
• Part IV stresses the importance of educational and other reforms within nation-states to enable Indigenous peoples to enjoy their rights.
• Part V focuses on the rights of Indigenous people to participate in economic and social decision-making processes.
• Part VI concerns Indigenous rights to lands, waters, and other resources.
• Part VII sets out arrangements by which Indigenous peoples may exercise their right of self-determination in self-governing arrangements.
• Part VIII focuses on the obligations of States and the international community to recognize Indigenous rights and to implement them.

The declaration is currently a draft within a Commission on Human Rights ad hoc body called an "inter-sessional working group." It has languished there since 1995, where Indigenous people struggle with the fact that many powerful nation-states are deeply opposed to what the Declaration means. Powerful states with Indigenous populations, like the USA, Canada, and Australia, have consistently objected to any declaration that would include a right of self-determination for Indigenous peoples. If the draft reaches the General Assembly and is made a formal Declaration, a powerful international statement will have been made about the basic standards of treatment Indigenous peoples can expect. However, in most contexts, it will still require the passage of domestic legislation in order to become an effective legal instrument.