| SPECIAL
MEETING OF THE WORKING GROUP TO
PREPARE
THE PROPOSED AMERICAN DECLARATION ON
THE RIGHTS OF INDIGENOUS PEOPLES |
OEA/Ser.K/XVI
GT/DADIN/doc.69/02
14 March 2002 |
Original: Spanish
Hall of the Americas
March 11 – 15, 2002 Washington, D.C.
Comments
by the Delegation of Canada
on articles VII through XVIII and
on
the issue of self-determination
in the Proposed American
Declaration on
the Rights of Indigenous Peoples
(Presented
on Thursday, March 14, 2002)
COMMENTS
ON ARTICLE 7
Right
to cultural integrity
Talking
Points:
The
UNESCO Declaration on Cultural Diversity, adopted last fall,
recognizes that cultural rights are an integral part of human
rights, which are universal, indivisible and interdependent.
Human rights are acknowledged as a critical tool for
guaranteeing cultural diversity.
The full implementation of cultural rights will enable
cultural diversity to flourish.
The UNESCO Declaration also noted the need for commitment
to human and fundamental freedoms, in particular, the rights of
indigenous peoples.
Canada recognizes that, as stated in the UNESCO Declaration,
“culture should be regarded as the set of distinctive
spiritual, material, intellectual and emotional features of a
society or collectivity”.
In our view, culture has both tangible and intangible
elements. It encompasses art, literature, lifestyles, ways of living
together, value systems, traditions and beliefs.
Through mechanisms such as international human rights
instruments, and domestic instruments, such as Canada’s Charter
of Rights and Freedoms, Canada and other countries have
acknowledged their pluricultural heritage.
The Canadian Charter of Rights and Freedoms
includes an interpretive provision that requires that the Charter
of Rights and Freedoms be interpreted in a manner consistent
with the preservation and enhancement of the multicultural
heritage of Canadians.
The Canadian Charter of Rights and Freedoms also
contains a provision that the guarantee of certain rights and
freedoms in the Charter shall not be construed so as to
abrogate or derogate from any aboriginal, treaty or other rights
and freedoms that pertain to the Aboriginal peoples of Canada.
In the Canadian Multiculturalism Act, 1985, Canada
adopted a multiculturalism policy that included:
recognizing and promoting the understanding that
multiculturalism reflects the cultural and racial diversity of
Canadian society and acknowledges the freedom of all members of
Canadian society to preserve, enhance and share their cultural
heritage; that multiculturalism is a fundamental characteristic
of the Canadian heritage and identity, and that it is an
invaluable resource; and of promoting the full and equitable
participation of individuals and communities of all origins, in
the continuing evolution and shaping of all aspects of Canadian
society.
It is within this framework of recognition and promotion of
cultural rights that we are providing our comments on Section 3,
Cultural Development.
The Juridical Committee, in its paper “Observations and
Recommendations of the Inter-American Juridical Committee on the
Proposed American Declaration on the Rights of Indigenous
Peoples” published in January, 1999, in paragraph 3.2 noted
that States are obliged to protect and guarantee any individual
or collective rights. The
Juridical Committee noted three types of obligations: first,
the obligation of the State may have to do with results, that is
the State may be responsible for guaranteeing a given result,
and may be liable if such result is not effectively achieved; second,
the State may have an obligation to act diligently and spare no
reasonable efforts as the means of achieving an end, in which
case if the end is not achieved, the state may not be liable if
it has fully complied with the foregoing obligation; and third,
in some instances the State may be obliged to spare no
reasonable efforts to find fair solutions when the existence of
conflicting laws and interests do not allow the establishment, a
priori, of drastic solutions.
Article
7(1)
In relation to Article 7(1), we question the use of the term
“right to their cultural integrity”, which is not a
recognized right in international law.
Furthermore, at international law where there is a right,
there is a consequent obligation.
The obligation flowing from a right to cultural integrity
is unknown.
We would submit that “cultural
integrity” is not a right in and of itself, but it is an
objective, that other rights addressed within the Proposed
Declaration are intended to promote –i.e. rights relating to
language, religion, education, religious freedom and freedom of
association. These
are all rights that have the objective of promoting the cultural
integrity of a group. Each of these rights carries obligations on states.
If member states wish to retain the term “cultural
integrity”, it should be stated as an objective, not a right.
Article
7(2)
Canada is willing to consider further the Chair’s proposed
text here. However, we understand the effect of Declarations to be
prospective, and believe this could be more clearly expressed in
this paragraph.
For example:
Indigenous
peoples are entitled to the restitution of property that is part
of that heritage, and of which they are wrongfully dispossessed,
or when that is not possible, to fair compensation.
We
note that cultural heritage is generally understood to have two
elements, tangible and intangible heritage or property.
Intangible cultural heritage, is described by UNESCO as
including, inter alia, oral traditions, customs languages,
music, dance, rituals, festivities, traditional medicine and
pharmacopoeia, culinary arts and special skills connected with
the material aspects of culture, such as tools and the habitat.
Arguably the existing language is broad enough to include
these intangible elements of culture.
This should be carefully considered. What would be the
obligation of states in such an instance?
If the intent is to restrict the application of this provision
to tangible cultural heritage, this should be stated in the
provision.
These issues are closely linked to the current discussions in
UNESCO and WIPO on traditional knowledge and folklore, and with
the provisions in this Proposed Declaration on customary laws,
and intellectual property rights.
Canada will come back to this language when we have
benefited further from those discussions.
Canada recognizes that an equally important but quite different
issue is that of past acts.
With respect to past acts, Canada believes that states
should make best efforts, in accordance with applicable
international and domestic law, to facilitate the return to
indigenous people of their cultural property.
Article
7(3)
Canada believes that clarification of the objective of this
paragraph is necessary, and hence examination of the terms
"recognize" and "respect" is required in the
context of this article. We
note that the Juridical Committee in its analysis called for
clarification of the legal scope of these terms. It is important that this be done.
COMMENTS
ON ARTICLE 8
Concepts
and language
Article
8(1)
Canada notes the improvements in the text to Article 8(1)
offered by the Chair. This
language reflects the existing right at international law, that
is the right not to be denied the right to use one’s language
rather than a right to a language.
We understand that the collective right to use language
is part of the means of maintaining the objective of cultural
integrity.
Article
8(2)
Canada believes that it is important for indigenous culture and
languages to be reflected in public media, and from a policy
perspective in Canada the “effective measures” called for
are essentially in place. However,
an obligation to ensure the broadcasting of radio and television
programs in indigenous languages, and to "support" the
creation of indigenous radio stations and other media could
place a substantial burden on states, particularly where there
are many indigenous languages, if "financial support"
is intended.
We query whether support would also mean incentives, quicker
regulatory approvals etc.
We appreciate the effort of the chair and find his language an
improvement over the original text, however we think the term
“support” may need to be clarified.
Article
8(3)
Canada supports the principle that indigenous individuals may
rely on the use of interpretation, or other appropriate means,
to enable them to understand and be understood in political,
legal and administrative procedures. We note that Article 14 of the International Covenant on Civil and Political Rights obliges states
to provide interpretation to individuals for criminal
proceedings. Currently
this paragraph goes well beyond Article 14, and the practical
and policy implications must be carefully examined.
If the “effective measures” referred to here include
translation of all administrative, legal and political rules, it
would prove problematic in those countries with many indigenous
languages (Canada has more than 52).
With respect to the obligation on states to have indigenous
languages established as official languages in places where such
languages are predominate, under Canadian law status as a
national official language carries a number of obligations
relating to translation, labeling all products in the official
languages etc. Our
understanding of this requirement would pose serious financial
and practical problems for states which have numerous indigenous
languages and legal consequences that flow from official
language status.
Rather than using a term that may have consequence in some
states, we would suggest identification of the purpose.
What is the actual objective sought, what is the
obligation of the state? Must
states recognize a right to use, promote, and maintain
indigenous languages? Are there obligations on states to
actively support this; or to achieve certain benefits?
Article
8(4)
Canada supports the use of indigenous names by indigenous
peoples. Clarification
is required with respect to what is required for a state to
"recognize" such names.
COMMENTS
ON ARTICLE 9
Education
Education
is a subject where it is important to recognize the rights of
individuals to an education.
This has been the long-standing approach in international
human rights law, as evidenced by Article 13 of the
International Covenant on Economic, Social and Cultural Rights.
Canada proposes that Article 9 begin with an expression
of a right to education for indigenous individuals, with special
reference to indigenous children, as follows:
Indigenous
individuals, particularly children, have the right to all levels
and forms of education of the State on the same basis as other
members of the society.
The
collective role of indigenous peoples is recognized in many
arrangements within Canada, such as policies for indigenous
education, legislation establishing indigenous education
authorities, and self-government arrangements.
Canada continues to support the principle that indigenous
peoples should have the ability to conduct their education
systems in their own languages and incorporate indigenous
content.
Nevertheless, we need to take account of international and
domestic obligations concerning minimum standards for education
which need to be respected. Canada is pleased to note that the proposed text of the Chair
moves in this direction. In
many States, such education standards are established at the
sub-national level and this should be understood in interpreting
the text. In addition, we remain unsure of the meaning of the
phrase: “equal education and teaching opportunities for the
general population.”
Canada will consider the Chair’s proposed text for Article
9(3) since it promotes broader understanding of indigenous
cultures within the education system. It also provides a reasonable standard for the education of
indigenous children living outside their communities.
Canada could support the Chair’s proposal for Article 9(4).
The manner in which the Proposed Declaration addresses the issue
of resources in this context and others will need to be
considered further.
COMMENTS
ON ARTICLE 10
Spiritual
and religious freedom
Article
10(2)
Canadian law protects freedom of religion and freedom from
religion. There are
also criminal laws that address kidnapping, and civil remedies
for certain acts that might be captured here.
We understand this paragraph might be intended, however, to
require states to adopt criminal laws prohibiting the acts
addressed here. This
would be problematic for Canada.
Perhaps other language can be used to achieve the
objective, rather than use of the term “prohibit”.
Article 10(3)
In Article 10(3), Canada generally supports the language
proposed by the Chair, which more clearly states the objectives
of the Article, and the consequent duties of states.
Article 10(4)
In Article 10(4) of the Chair’s proposed text, we suggest the
onus on states should be to “promote” rather than
“ensure”.
COMMENTS
ON ARTICLE 11
Family
relations and family ties
Article
11(1)
Canada supports the statement on the important role played by
the family in indigenous societies. We consider, however, that
the scope of this paragraph requires some clarification, in
particular, the content of the state obligation to
"recognize" and "respect" indigenous family
structures, marriages, family names and filiation.
Article 11(2)
In considering matters relating to the adoption of children,
reliance must be placed on Article 3 of the Convention on the
Rights of the Child, which provides that in all actions
concerning children, the best interests of the child shall be a
primary consideration. In
the context of Article 11(2), regarding the determination of the
best interests of the child in matters relating to the adoption
of indigenous children, Canada agrees that consideration should
be given to the views of the appropriate indigenous community,
particularly the child’s family.
COMMENTS
ON ARTICLE 12
Health
and well-being
Canada
is of the view that it is important to recognize the rights of
all individuals, indigenous or otherwise, to the highest
attainable standards of physical and mental health.
Canada also supports the principle that indigenous
individuals should have access to health care services on the
same basis as other members of the general population.
Canada therefore proposes the addition of a new Article 12(1),
which would incorporate what is now the latter portion of
Article 12(3), as follows:
Indigenous
individuals have the right to access health institutions and
services and medical care on the same basis as other members of
the general population.
Canada
supports the recognition of the importance of traditional health
practices to indigenous peoples, noting, however, that this must
be subject to public safety and to the protection of the best
interests of the child and other vulnerable persons.
At present, the current paragraphs 1 and 2 of Article 12 are
rather broad and difficult to implement.
In the original text of Article 12(1) clarification is
required as to the meaning of “legal recognition” of
traditional medicines. It
is unclear whether this is meant to include protection under
intellectual property regimes, a requirement for special
legislation, or if it is understood to be a “right to use”?
The Chair’s proposed paragraph 2 goes some distance towards
rectifying this, although we note that “traditional
territories” is an undefined term.
Canada supports the right of every individual to the enjoyment
of the highest attainable standard of physical and mental
health, to be achieved in a flexible and progressive manner.
Canada supports the principle that, where health care conditions
in indigenous communities fall below the standards accepted for
the general population that measures must be taken to elevate
these standards so that they meet the accepted norms for the
general population.
COMMENTS
ON ARTICLE 13
The right to environmental protection
Talking
points:
Canada recognizes the importance of the subject matter addressed
in this provision to indigenous peoples, in light of the close
link between environment and culture for indigenous peoples.
In general, Canada will wish to revisit this Article after a
common understanding has been reached about the meaning of the
terms “lands”, “territories”, “indigenous areas”
“conservation area”, “protected area” and
“resources”. As
well, it will be important to revisit this Article after we have
discussed other Articles that address land rights, to ensure
consistency and complementarity between the provisions.
Article 13(1)
There is not a “right to a safe and healthy environment”
recognized in international law.
However, a number of environmental considerations are
addressed by fundamental human rights such as: the right to
life; the right to an adequate standard of living including
adequate food, clothing and housing, and the continuous
improvement of living conditions; and the right to the enjoyment
of the highest attainable level of physical and mental health.
Recently, pursuant to CHR resolution 2001/111, a seminar of
experts was held in Geneva to “review and assess progress
achieved” since the Rio Summit in “promoting and protecting
human rights in relation to environmental questions and in the
framework of Agenda 21”. We think it necessary to further our
understanding of such linkages. We are not convinced that it is
advisable to consider the creation of a new stand-alone human
right on the environment. This
would raise complex issues which we believe require further and
careful consideration. The
work being done in other international fora will need to be
taken account of in our deliberations on this Proposed
Declaration.
Article 13(2)
Indigenous individuals and collectivities should have access,
equal to that of others, to information about actions and
decisions affecting the environment to facilitate their
effective participation in those actions and policies.
As well, under Canadian law indigenous communities have a
right to be consulted in the development of actions, programs
and polices that will infringe their constitutionally recognized
aboriginal and treaty rights.
Article 13(3)
Indigenous peoples should be entitled to take measures to
conserve, restore and protect their environment and the
productive capacity of their lands and resources,
consistent with international law and applicable national
environmental standards. Article
18(3) covers similar subject-matter and should be considered
with this article.
Article 13(4)
Canada supports the principle that indigenous peoples should be
involved in the development of government policies and programs
specifically directed at the conservation of their lands,
and to participate in the delivery of those policies and
programs.
Article 13(5)
Canada agrees that indigenous peoples should be entitled to
appropriate and available assistance from states for
environmental protection, on the same basis as other members of
the national community.
Article 13(6)
Canada agrees that the storage or disposal of radioactive or
other hazardous materials in contravention of legislation or
regulation, or without the prior and informed consent of the
indigenous peoples affected should be prohibited.
Article 13(7)
Canada supports, in general, the principle of this paragraph
that conservation areas over which indigenous peoples have title
shall not be subject to any natural resource development without
the appropriate participation of the peoples concerned. However, in the case of lands and territories claimed by
indigenous peoples (or in which they may potentially claim an
interest) we are concerned that the wording of this paragraph
may give indigenous peoples a veto over development, which
Canada does not support.
Although we cannot agree with a veto, our policy is to take into
account their views and interests in the assessment of proposed
natural resource development.
Furthermore, we suggest that what is required is language
in the Proposed Declaration that calls for effective domestic
processes to address unresolved claims in a timely fashion.
COMMENTS
ON ARTICLE 14
The
rights of association, assembly, freedom of expression and
freedom of thought
Article
14(1)
Canada notes the proposal of the Chair to change the term
“pursuant to” with “according to” has clarified the
text. Canada
supports the internationally recognized right to “freedom of
association, and expression, and the right to peaceful
assembly”.
Article 14(2)
Canada welcomes the proposal of the Chair on this paragraph.
No rights are absolute, and sometimes it is necessary to
clearly state that a specific right must be exercised in a
manner that respects the rights of others.
The reference to third party rights reflects the reality
in our country, and we welcome its addition.
While many states, such as Canada, wish to facilitate cross
border contact between indigenous people of the same community
or nation living on two sides of an international border, the
reality is that border restrictions and controls are a necessary
part of our lives. Reflecting this in the Proposed Declaration
is a useful reflection of considerations that affect us all.
COMMENTS
ON ARTICLE 15
The
right to self-government
Article
15(1)
In Canada’s view, Article 15 is one of the core articles in
the Proposed Declaration. This
Article is an enumeration of many of the elements necessary for
effective self-government by indigenous communities.
If such a right is combined with recognition of a right
of self-determination for indigenous peoples, the two will be
read together and will be the lens through which we examine the
entire Proposed Declaration.
Domestically, the Government of Canada recognizes the inherent
right of self-government of indigenous peoples.
Recognition of the inherent right is based on the view
that the indigenous peoples of Canada have the right to govern
themselves in relation to matters that are internal to their
communities, integral to their unique cultures, identities,
traditions, languages and institutions, and with respect to
their special relationship to their land and their resources.
Canada notes that the exercise of self-government must be
harmonized with the exercise of jurisdiction by other levels of
government within that state.
In certain areas, for example environmental standards,
the harmonization of these policies and practices is especially
important. Therefore,
the exercise of self-government should be accomplished through
negotiations between the appropriate level of government and
indigenous communities.
Article 15(2)
This paragraph essentially addressed three issues: participation
in decision-making, means of participation, and the
establishment of indigenous decision-making institutions.
In relation to the first, Canada supports the principle that
indigenous individuals have the right to participate in the
general political processes of the state in which they live
without discrimination, consistent with international standards.
As well, there may be special arrangements to allow
participation in decisions of the state which directly affect
certain areas of specific concern to indigenous peoples.
Canada supports the role of the collective in this
context.
In relation to means of participation, Canada supports
participation without discrimination in the democratic process. As well, we recognize that indigenous peoples may select
representatives in accordance with traditional practices for
their purposes.
In relation to indigenous decision-making institutions, Canada
recognizes that indigenous peoples may develop their own
decision-making institutions in accordance with general human
rights principles.
COMMENTS
ON ARTICLE 16
Indigenous
law
Article
16
Article 16 raises significant issues for us. We also note these
paragraphs are closely linked to Article 15 and the right of
self-government.
Within the context of negotiated self-government agreements
applying to a defined geographic territory, Canada supports the
negotiation of jurisdictions and law-making powers and
administration and enforcement of indigenous laws.
A very critical issue, however, is the relationship of laws.
In other words, the question of which law will take
priority in the event of a conflict between an indigenous law,
and a law of the state. In
the Canadian experience, this can vary depending on the subject
matter of the laws in question.
In the event of a conflict between indigenous laws and
national laws, in some instances the indigenous laws will
prevail, and in other cases the laws of the state will prevail. It is Canada’s practical experience in these areas, which
make us seek greater clarity when such rights are stated in a
fairly general manner.
It is unclear as to what is included in the term “indigenous
laws”. Is it restricted to laws passed by indigenous
communities or does it include customary indigenous law - ie a
custom, practice or tradition?
Canada does not support a separate legal system for indigenous
peoples as this would be contrary to the right of all persons to
be equal before the courts and tribunals and would be contrary
to Article 14 of the ICCPR.
COMMENTS
ON ARTICLE 17
National
incorporation of indigenous legal and organizational systems
Article
17(1)
Canada supports the objective that indigenous values be
reflected, with the values of other citizens of the states, in
the development of national organizational structures.
Article 17(2)
Canada agrees that states should endeavor to reflect and
reinforce the indigenous identity, culture and organization in
state institutions designed specifically to serve indigenous
people or that operate in areas or in communities that are
predominantly indigenous. The intent should be
the progressive realization of this objective.
COMMENTS
ON ARTICLE 18
Traditional
forms of ownership and cultural survival
Rights
to land, territories and resources
For Canada, it is imperative that terms such as “lands” and
“territories” be defined.
This is necessary because of the central importance of
land to indigenous peoples, and the need for states to have
clarity with regard to the extent of their obligations in
relation to the lands and natural resources of indigenous
peoples.
As in past meetings of the Special Working Group, Canada
proposes the following definitions:
“Lands”
are understood to mean those areas of land, which indigenous
peoples may own or have exclusive use of.
“Territories”
are understood to be those areas which indigenous peoples do not
own and do not have exclusive use of, but where they may conduct
their traditional lifestyles, in accordance with domestic law or
agreement.
In
relation to the text of Article 18, Canada thinks the proposals
of the Chair do a good job of clarifying and focusing some very
complex concepts. Therefore, our comments refer to the proposals of the Chair.
Article 18(1)
We understand Article 18(1) addresses the issues of indigenous
collective ownership of lands, and indigenous land tenure.
Canada recognizes the collective ownership of land by indigenous
peoples, and the role of the collectivity in allocating lands,
and in determining land use and land tenure.
We believe, however, that the full exercise of such
rights apply to the lands of indigenous peoples rather than the
territories of indigenous peoples, over which their rights may
be more limited.
Rights to control and enjoy lands or territories may also be
subject to certain state and international regulation, for
example, those, which relate to environmental protection.
This is necessary if states are to fulfill international
obligations relating to improving environmental protection
standards.
It is Canada’s understanding that “property” refers to
real property, that is, land, and does not include personal
property.
Article 18(2)
Article 18(2) is very broad and would appear to apply to all
lands and territories in Canada that were occupied by indigenous
peoples in the past without taking account of historical or
modern treaties or agreements entered into to enable indigenous
peoples, governments and third parties to have certainty
regarding land rights and development.
Canada believes that, in general, provisions relating to lands
and territories should set out general principles that will
guide future action, but be flexible enough to allow for
negotiated agreements between indigenous peoples and states.
Canada is committed to resolving outstanding domestic
claims issues through an effective negotiation process.
As well, of course, indigenous peoples have access to
domestic courts to address unresolved claims.
Canada supports the principle that indigenous peoples have a
right to recognition of their property and ownership rights in
relation to lands they own or occupy to the exclusion of others
or which have been set aside for their exclusive use. As
well, Canada recognizes that indigenous peoples may have rights
to use territories, to which they have historically had access
for their traditional activities and livelihood, in accordance
with domestic laws. As
noted earlier, aboriginal and treaty rights, which often include
rights to hunt and fish or gather on territories which they do
not own or have exclusive use of, are recognized within
Canada’s constitution.
We note that, with other provisions of this Proposed
Declaration, the attribution of ownership or use of property in
accordance with customs, traditions, uses and traditional
practices of indigenous peoples may be subject to international
human rights standards.
Article 18(3)
It is Canada’s view that Article 18(3) should refer to lands
over which indigenous peoples now have property and user rights
recognized under domestic law.
Canada’s constitutional protection of existing
aboriginal and treaty rights achieves the objective sought here.
Even these constitutional rights are not absolute,
however, and there may be justifiable infringement for
conservation and resource management purposes, after
consultation with affected indigenous communities.
Article 18(4)
Where states retain ownership of minerals or subsurface
resources on lands owned by indigenous communities or set aside
for their exclusive use, Canada agrees there should be a fair
process established to consider whether exploiting those
resources would adversely impact on indigenous lands and
traditional activities.
Affected indigenous communities should be involved in any such
process, and their views should be taken into account.
In some land claims settlements, arrangements have been
established for the co-management of sub-surface resources.
Where it is determined there will be a negative impact,
indigenous communities should receive just compensation, in
accordance with applicable domestic laws.
Canada thinks that states and developers should make best
efforts to ensure indigenous communities have the opportunity to
participate in the benefits of resource exploitation.
Article 18(5)
Canada supports the principle expressed in this Article 18(5).
In the interest of continuity between different
international processes relating to indigenous rights, however,
we suggest the following wording which has also been discussed
in the context of the United Nations Working Group on the Draft
Declaration on the Rights of Indigenous Peoples:
Indigenous
peoples and individuals shall not be arbitrarily removed from
their lands. No
relocation shall take place, except on at least the same basis
as applies to other members of the national community, after
consultation, and on the basis of just and fair compensation and
shall take place, where possible, with the option of return.
Our
understanding is that this paragraph would not preclude removal
in emergency situations, such as natural disasters.
This wording addresses the need for appropriate procedures and
the possibility of compensation other than land, in consultation
with the indigenous community.
Former paragraph dealing with “restitution”
Canada supports the elimination of this paragraph, as per the
Chair’s proposal, given our commitment to the fair resolution
of land claims through a process of modern day treaty-making.
Article 18(6)
Canada supports that indigenous peoples should have access to
civil remedies for trespass and adverse possession.
In our view, this legal protection is adequate, and
states do not need to adopt criminal sanctions.
In addition, Canadian law prevents the surrender of
reserve lands and lands under aboriginal title to anyone but the
Crown.
CANADA’S
POSITION ON SELF-DETERMINATION
IN
THE PROPOSED AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS
PEOPLES
Canada
supports the inclusion of an Article on the right of
self-determination in the United Nations and American
Declarations on the Rights of Indigenous Peoples. In the
context of the Working Groups at the United Nations and here at
the Organization of American States, our goal will be to develop
a common understanding, consistent with evolving international
law, of how this right is to apply to indigenous collectivities,
and what the content of the right to self-determination
includes. Once achieved, this common understanding will
have to be reflected in both Declarations.
In Canada’s view, the source of a right of self-determination
that would be included in both Declarations is common Article 1
of the International Covenants on Civil and Political Rights and
Economic, Social and Cultural Rights. A definition of
self-determination, and the scope and content of that right,
cannot be developed to be applicable only for indigenous peoples
of the Americas. However, implementation of the right must take
account of the situation in each state, recognizing common
elements.
As a state party to the UN Charter and the Covenants, Canada is
legally and morally committed to the observance and protection
of the right of self-determination, enshrined in the Charter,
and common Article 1 of the Covenants.
Canada recognizes that this right applies equally to all
collectivities, indigenous and non-indigenous, that qualify as
peoples under international law.
International law regarding the right to self-determination is
evolving. The right
can perhaps be understood if it is seen as a right on a
continuum. Rather
than as an absolute right, it is one that is context dependent.
On this basis, the right of self-determination for an indigenous
people, in a democratic state, would include an “internal
right” of self-determination, which would enable them to
exercise control over aspects of their lives, as an indigenous
peoples. As well,
individuals could participate in the right of self-determination
exercised by the nation state (e.g. Canada), on an equal basis
with other citizens of that state.
The following is a Canadian attempt, for the purpose of both the
UN and the OAS Working Groups, to outline how the right of
self-determination could be implemented by indigenous
collectivities living within states having a government
representative of the whole people belonging to the territory
without distinction as to race, creed or colour:
·
This right of self-determination respects the political,
constitutional, and territorial integrity of democratic states;
·
Exercise of the right involves negotiations between
states and the various indigenous peoples within those states on
the means of pursuing the political, economic, social and
cultural development of the indigenous peoples involved;
·
These negotiations must reflect the jurisdictions and
competence of existing governments and must take account of
different needs, circumstances and aspirations of the indigenous
peoples involved;
·
This right of self-determination is intended to promote
harmonious arrangements for indigenous self-government within
sovereign and independent states; and;
Consistent
with international law, the right shall not be construed as
authorizing or encouraging any action which would dismember or
impair, totally or in part, the territorial integrity or
political unity of sovereign and independent states, conducting
themselves in compliance with the principle of equal rights and
self-determination of peoples, and thus possessed of a
government representative of the whole people belonging to the
territory, without distinction as to race, creed or colour.
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