From Indigenous Peoples in Brazil

UN Declaration on the Rights of Indigenous Peoples

by Fernando Mathias, lawyer, Instituto Socioambiental (ISA)

After 22 years the Declaration on the Rights of Indigenous Peoples is approved by the United Nations.

The demands of indigenous peoples for international protection of their rights were finally met when, on 13 September 2007 in New York, the United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples.

Extremely progressive, the text of the Declaration reflects the set of current demands of indigenous peoples throughout the world regarding improvement of their relations with nation states and sets minimum standards for other international instruments and national laws. The Declaration embodies principles such as equal rights and the prohibition of discrimination, the right to self determination and the requirement to make consent and common agreement the criterion for all types of relationship between indigenous peoples and states (see below).

Main points of the Declaration

  • Self-determination: indigenous peoples have the right to freely determine their political status and to freely pursue their economic, social and cultural development, including amongst other things their own education, health, financial and conflict resolution systems. This was one of the principal areas of disagreement among countries: those opposed argued that this could lead to the establishment of indigenous “nations’ within a national territory.
  • Right to free, prior and informed consent: just as in the case of the ILO Convention 169, the UN Declaration guarantees the right of indigenous peoples to be adequately consulted prior to the adoption of legal or administrative measures of any nature, including infrastructural works, mining or the use of water resources.
  • Right to compensation for the loss of property: the Declaration requires national states to compensate indigenous peoples in respect of any cultural, intellectual, religious or spiritual property removed without prior informed consent or in violation of traditional norms. The can include the return or repatriation of sacred ceremonial artefacts.
  • Right to retain their cultures: amongst other things this right includes the right to the retention of traditional place and personal names and the right to conduct political, administrative or judicial procedures with translation and interpretation.
  • Right to communication: indigenous peoples have the right to retain their own forms of communication in their languages, as well as access to all non-indigenous communication, thereby ensuring that public media programming incorporate and reflect the cultural diversity of indigenous peoples.

The UN has been pursuing agreement on a declaration on the rights of indigenous peoples since 1985. Years of negotiation within the Working Group on Indigenous Populations involving governments, representatives of indigenous peoples and civil society led to an initial proposal. This draft then started its journey through successive layers of the intergovernmental decision making process. It was approved by the Sub-Commission on Prevention of Discrimination and Protection of Minorities in 1994 and then became stuck in the Commission on Human Rights.

In 1993 the General Assembly proclaimed the first International Decade of the World's Indigenous People for the period 1995 to 2004. One of the main intentions behind this was the adoption of the declaration. In 2004, faced with a negotiating impasse and the prospect of the opportunity being lost, indigenous leaders started a hunger strike in front of UN Headquarters to put pressure on countries to approve a second Decade, which in the end was approved for the period 2005 to 2014.

On 29 June 2006 countries and indigenous representative arrived at a consensus on the content of the declaration, and it was approved by the Commission on Human Rights. Throughout this process the strategy of the indigenous peoples’ movement was to prefer extending the period of negotiation to giving way on their basic demands in the face of opposition by some countries, led by the United States.

The declaration had been ready for final approval by the General Assembly since November 2006, but a group of African countries supported by the United States and Canada raised last minute objections concerning the scope of the terms “peoples” and “self-determination”. These arguments referred to a supposed danger of creating ethnic divisions and conflicts as well as threats to national borders.

Finally, following strong pressure from other African countries and countries in the Americas, the Declaration was finally adopted by the General Assembly by 143 votes in favour, eleven abstentions and four votes against – the United States, New Zealand, Canada and Australia.