The Draft UN Declaration on the Rights of Indigenous Peoples: What is it? What Does it Mean?
| Author | Robert T. Coulter |
| Published date | 01 June 1995 |
| Date | 01 June 1995 |
| DOI | http://doi.org/10.1177/016934419501300203 |
| Subject Matter | Part A: Article |
The Draft UN Declaration on the Rights of Indigenous Peoples:
What is it? What does it mean?
Robert T.
Coulter"
Abstract
The draft UN Declaration on the Rights
of
Indigenous Peoples, now before the UN
Commission on Human Rights, is a far-reaching and innovative document that has
resulted from more than 10 years
of
debate, lobbying and drafting by indigenous
representatives, human rights experts and members
of
the UNSub-Commission's Working
Group on Indigenous Populations. The level and nature
of
indigenousparticipation in this
elaboration
of
human rights standards has been unprecedented. The draft Declaration sets
forth basic human rights that flow from long-established principles
of
international law
and widely accepted concepts
of
human rights. The detailed provisions
of
the draft
Declaration would reach out to protect indigenous communities as well as indigenous
individuals from the discrimination, the deprivations and the abuses that they so often
endure. The author praises the draft for its thoroughness and adherence to principle. The
article summarizes and analyses the provisions
of
the draft Declaration and calls for
others to provide futher commentary and analysis.
Introduction
On 26 August 1994, the United Nations Declaration on the Rights of Indigenous Peoples!
was adopted without a vote by the UN Sub-Commission on Prevention of Discrimination
and Protection of Minorities and was transmitted up to the UN Commission on Human
Rights." The Commission decided on 3 March 1995, to create a new working group to
meet annually to consider the draft Declaration and report to the Commission.' The draft
Declaration is an historic statement of indigenous peoples' human rights that was drafted
and debated over a period of some ten years by the Sub-Commission's Working Group
on Indigenous Populations. After debate and possible revision by the Commission, the
draft Declaration will go to the Economic and Social Council and finally to the UN
General Assembly for adoption.
Robert T. Coulter has been extensively involved in advocacy of indigenouspeoples' rights at the United
Nations since 1976. He is a lawyer, a member of the Citizen Band Potawatomi Tribe and Executive
Director of the Indian Law Resource Center in the United States. The Indian Law Resource Center is a
non-governmental organization with consultative status with the Economicand Social Council of the UN.
Center attorneys Steven M. Tullberg and Terry L. Janis contributed to this article, as did Center Board
member Dalee SamboDorough. An earlier version of this article appearedin Cultural Survival Quarterly,
Spring 1994.
The authoritative text of the Declaration as agreed upon by the Working Group members at its 1993
session is included in: Report
of
the Working Group on Indigenous Populations on its eleventh session,
E/CN.4/Sub.2/1993/29, pp. 50-60, 23 August 1993, and in Julian Burger and Paul Hunt, 'Towards the
International Protection of Indigenous Peoples' Rights', NQHR, Vol. 12,
No.4,
1994, p. 405, at p. 424
et seq.
Resolution 1994/45, 26 August 1994,
E/CN.4/Sub.2/1994/56,
p. 103.
E/CN.411995/L.62
as revised, adopted without a vote on 3 March 1995.
123
NQHR 2 /
i995
As the Declaration is reviewed and debated in the Commission's working group and
in higher bodies, ever sharper attention willbe focused on the meaning and effect of the
Declaration's provisions. The draft Declaration has been controversial both because
indigenous peoples' rights arouse many ancient fears on the part of States around the
world and because the Declaration prominently raises some important issues such as the
rights of groups or communities of people. What the Declaration says and what it will
mean in practice are not well understood even by many of those actively involved in
developing these new human rights standards. The meaning of the Declaration has
remained somewhat in the mist, in part because of the procedure used for developing
these human rights standards. The UN Working Group on Indigenous Populations
conducted years of open meetings to discuss the substance of the Declaration, but it has
written the actual text in closed sessions, so far without issuing a detailed commentary
or explanation.
This article will describe the principal features of the Declaration and discuss the
meaning and probable effect of some of itsmore important provisions. While we cannot
be sure of the meaning of all of the language in the Declaration, we will draw together
some
of
the observations and comments that have been made by participants in the
drafting process, particularly the Chairperson-Rapporteur of the UN Working Group, Dr.
Erica-Irene Daes.
When Indian and other indigenous leaders from the Americas planned the 1977 Non-
Governmental Organizations Conference at the United Nations entitled 'Discrimination
Against Indigenous Populations in the Americas - 1977', they drafted a proposed
declaration of principles on the rights of indigenous peoples for consideration at the
conference. A declaration of principles has been the traditional first step in developing
human rights standards on a particular topic. The NGO Conference adopted the
declaration, calling it the 'Declaration of Principles for the Defense of the Indigenous
Nations and Peoples
of
the Western Hemisphere." This early draft declaration had been
circulated among indigenous nations and communities in the Americas for many months,
and, with revisions, it had received wide support. This statement of human rights - which
included self-determination, environmental protection and other essential rights for
indigenous peoples as nations or communities- was adopted by consensus by the
indigenous representatives and non-governmental organizations at the conference.
It
represented a strategy of seeking a formal recognition of indigenous peoples' rights by
the United Nations, and it was the indigenous peoples' own initial proposal for the
declaration that the UN would be asked to prepare.
To prepare an official UN declaration and to bring indigenous rights issues into more
active consideration at the United Nations, indigenous leaders pressed for the
establishment of a working group by the UN Sub-Commission on Prevention of
Discrimination and Protection of Minorities.
For
several years a Special Rapporteur
appointed by the Sub-Commission had been preparing a study on discrimination against
Special NGO Committee on Human Rights (Geneva) - Sub-Committee on Racism, Racial Discrimination,
Apartheid and Decolonization, Report
of
the international NGO Conference on Discrimination Against
indigenous Populations in the Americas -i977: Statements and Final Documents. Copy on file with the
author.
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