The opening of 9th session of the UN Permanent Forum on Indigenous Issues at UN Headquarters on 19 April 2010, provided the platform for the New Zealand Government to announce its new-found support for the Declaration on the Rights of Indigenous Peoples. The announcement, delivered by the Minister for Maori Affairs, Dr Pita Sharples, was received with a rousing standing ovation from an estimated 2,000 indigenous peoples, NGOs and States in attendance. A powerful Maori song of thanks followed (pictured), which in turn prompted the Maori’s Hawaiian cousins to respond with their own song of congratulations.
In her statement to the Permanent Forum the following day, the US Ambassador to the UN, Ms Susan Rice, announced that the Obama Administration “will be conducting a formal review of the Declaration and the US position on it. We recognize that, for many around the world, this Declaration provides a framework for addressing indigenous issues”. After crediting tribal leaders for their role in persuading the government to rethink its position on the Declaration, Ambassador Rice went on to advise that the US will be “consulting extensively” with “federally recognsied Indian tribes” and “interested NGOs” and is “deeply committed to strengthening and building government-to-government relationships among the United States and our tribal governments.”
ISHR will be publishing further updates on developments at the 9th session of the UN Permanent Forum on Indigenous Issues which runs from 19-30 April 2010. The main theme of the session is Indigenous peoples: development with culture and identity; articles 3 and 32 of the United Nations Declaration on the Rights of Indigenous Peoples.
When the General Assembly adopted the Declaration in 2007, 144 States supported the text and only four were opposed: Australia, Canada, New Zealand and the US. Political pressure on these four States to review their position has been mounting, and is now paying dividends. Australia was the first to announce its change of heart in April 2009, and Canada recently announced it would take steps to endorse the Declaration “in a manner fully consistent with Canada’s Constitution and laws”. Canada’s First Nations have appealed to their government to embrace the Declaration without any caveats.
All four opposing States had been deeply involved in the negotiations to draft the Declaration, which spanned over 20 years. At the end of the process, none of them rejected the text outright, but each had concerns about the practical application of a few key provisions, especially those relating to self-determination, land and natural resources. Indigenous peoples and others involved in the negotiations always emphasized the built-in safeguards that were included to address State concerns that the Declaration would grant indigenous peoples rights above and beyond other groups, or would open the door to an indigenous ‘land grab’.
Although universal support for the Declaration now seems inevitable, it is important to note the caveats that recent converts to the text are attaching to their support. For example, although the New Zealand Minister acknowledged that the Declaration “is an affirmation of accepted international human rights”, he went on to say that it “also expresses new, and non-binding, aspirations”. This arbitrary division of the Declaration into ‘binding’ and ‘non-binding’ elements looks set to allow the Government to pick and choose which provisions it will uphold, and which it will deem ‘aspirational’ and thus ignore. The right of indigenous peoples to exercise their ‘free, prior and informed consent’ in relation to government decisions that will affect them (article 19) already appears to be in New Zealand’s ‘non-binding basket’.
Whilst an international ‘declaration’ is technically a non-binding instrument, indigenous peoples and international legal experts have stressed that the Declaration on the Rights of Indigenous Peoples is grounded in existing human rights treaties that are legally binding on the States that have ratified them. These include, but are not limited to, the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights as well as the Convention on the Elimination of All Forms of Racial Discrimination. The Declaration is intended to guide States on how to give effect to their human rights obligations as they relate to indigenous peoples. This value added role of the Declaration has been recognized by the UN treaty body system, which has also made it clear that regardless of whether a State supported the adoption of the Declaration on the Rights of Indigenous Peoples, treaty bodies will use it to assess all States parties’ records on protecting and promoting the rights of the world’s 370 million indigenous peoples.
