COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION BRIEFED ON UNITED NATIONS DECLARATION ON RIGHTS OF INDIGENOUS PEOPLES

Committee on the Elimination
of Racial Discrimination

19 February 2008


The Committee on the Elimination of Racial Discrimination this morning was briefed on the United Nations Declaration on the Rights of Indigenous Peoples by Julian Burger, Coordinator of the Indigenous Peoples and Minorities Unit of the Office of the High Commissioner for Human Rights (OHCHR), who spoke on innovative concepts in the Declaration, highlighted areas that might be of interest to the Committee, and drew attention to some emerging issues.

Mr. Burger said that, for him, the Declaration on the Rights of Indigenous Peoples had two underlying principles: that of self-determination, and that of non-discrimination. A third quality of the Declaration that ran throughout was that it made a number of strong recommendations to States as to what they should do to rectify the situation of indigenous peoples, which was rather unusual for a declaration. To give an example, in Article 14, on education, a first part set out that indigenous peoples had the right to establish and control their educational systems and institutions and to use their own languages; a second paragraph set out that indigenous peoples had the right to all levels and forms of education without discrimination; and a third paragraph set out recommendations for States to ensure those rights. The Declaration also maintained an anti-assimilationist standpoint – that is it reaffirmed the right of indigenous peoples to their separate culture and traditions.

Highlighting four or five elements that might be of interest to the Committee, Mr. Burger said the Declaration was unusual in that it recognized the right to self-determination of indigenous people, and that that might be expressed as the right to autonomy or self-government. It also introduced the notion of "free, prior and informed consent". That notion was associated with the forcible dispossession of indigenous people of their lands; and in terms of development priorities, for example. The Declaration made clear that that was different from "consultation", a concept set out in ILO Convention No. 169 concerning Indigenous and Tribal Peoples.

There was also a cluster of articles about land, territories and resources, which was clearly an issue of great importance for indigenous peoples, Mr. Burger continued. The Declaration addressed indigenous peoples' spiritual relationship with the land; the right to lands they traditionally occupied and owned; the right to an impartial process in determining indigenous lands; the right to conservation; and a restriction on the use of indigenous peoples lands for military purposes, among others. There were a number of specificities set out about traditional practice and tenure that often applied to indigenous lands but not to other land laws – such as use of lands for religious ceremonies or hunting, without actually inhabiting the land.

In terms of some important distinctions, Mr. Burger said that, while the Declaration also mentioned the right of indigenous people with regard to development, unlike ILO Declaration No. 169, the Declaration did not refer to sub-surface materials. So the Declaration only referred to resources located on the surface of the land. The Declaration provided no recognition of self-identification of indigenous peoples, rather it set out that indigenous people could determine who and how membership in their communities was to be determined. Finally, the Declaration asked Governments to make sure that when it consulted with indigenous peoples that it was negotiating with authorized groups.

Mr. Burger, to put things in perspective and to highlight emerging issues, said that some 300 to 400 million indigenous peoples lived in some 60 or 70 States around the world. However, there was a trend towards urbanization of indigenous peoples, with some 40 per cent or more now living in urban environments. A new concern that had been raised with the High Commissioner was the situation of voluntarily isolated indigenous peoples, which was particularly true in the Amazon region and in places in Latin America.

Basically, OHCHR's interest in the Declaration was that it could offer a framework for negotiation between equals, allowing for discussion and dialogue between Governments and indigenous peoples, whereas in the past those relations had often been conflictual, Mr. Burger said.

Finally, Mr. Burger recalled the Human Rights Council had established a Working Group on Indigenous Peoples at its last session. The Working Group was to hold its first meeting from 1 to 3 October 2008.

Responding to questions, Mr. Burger clarified that, as far as conflicting claims to natural resources found on indigenous lands, the Declaration did not enter into that area, at least in terms of ownership of resources under the surface of the lands. However, it did provide for consultations to be undertaken in such issues, and a way to proceed.

As for integrating the Declaration better into the work of the United Nations system, Mr. Burger said the OHCHR Communications Unit had just developed a communications strategy for the Declaration, linked to the campaign celebrating the lead up to the sixtieth anniversary of the Universal Declaration of Human Rights. Field offices had also begun work on translating the Declaration into languages other than the six official languages of the United Nations.

As for the effect of such "soft-law" instruments in the area of hard law, Mr. Burger noted that a supreme court in Belize had specifically referred to the Declaration in determining the land rights of indigenous people of Belize. Regarding a question on whether the right of self-determination for indigenous peoples was different than the right that all people had to self-determination, Mr. Burger conceded it was not. However, the Declaration rather allowed them to explore the whole difficult territory of self-determination, and offered a way forward to all sides, so that they could come together as equal partners.

The United Nations Declaration on the Rights of Indigenous Peoples was adopted by the General Assembly on 13 September 2007 (A/RES/61/295), following more than two decades of negotiations between Governments and indigenous peoples' representatives. The UN Declaration was adopted by a majority of 144 States in favour, 4 votes against (Australia, Canada, New Zealand and the United States) and 11 abstentions (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine). The Declaration establishes a universal framework of minimum standards for the survival, dignity, well-being and rights of the world's indigenous peoples. The Declaration addresses both individual and collective rights; cultural rights and identity; rights to education, health, employment, language, and others. It outlaws discrimination against indigenous peoples and promotes their full and effective participation in all matters that concern them. It also ensures their right to remain distinct and to pursue their own priorities in economic, social and cultural development. The Declaration explicitly encourages harmonious and cooperative relations between States and indigenous peoples.

When the Committee reconvenes at 3 p.m. this afternoon, it will begin its review of the combined sixteenth and seventeenth periodic reports of Fiji (CERD/C/FJI/17).

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