Indigenous Peoples, Self-Determination and Self-Government in International Law

Chapter 6


Indigenous Peoples, Self-Determination and Self-Government in International Law


Introduction


As with domestic law, there is a certain danger for Aboriginal peoples in engaging with international law. Operating within the constraints of a positivistic framework, modern international law is law made by states, for states. It is a system which first and foremost seeks to protect the vested interests of its constituent members and, at least until recently, has therefore shown very little interest in individuals or sub-state groups, particularly where the interests of the latter are perceived to threaten or destabilize state interests and security. A number of constraining factors would seem to make it an unlikely forum for successfully advancing the claims of indigenous peoples.1 The positivist foundations of international law with its restricted focus on the rights and duties of states; its exclusion of sub-state groups; its rigid adherence to the principle of state sovereignty; and its strong dependence on the principle of state consent are just some of the more problematic for indigenous peoples. No matter how compelling the moral imperative may be, no norm of international law can become legally binding upon a particular state unless the state freely accepts the obligation or at least does not object to it. This makes international law, particularly in the sphere of international human rights, a somewhat unusual and at times intensely frustrating system. States are being asked to regulate their behaviour by assuming legally binding obligations with respect to their own citizens which are not always consistent with the state’s own interests.2 It is thus no surprise to find that when the key interests and priorities of the state, as it perceives them, are at stake, the state has not always been willing to cooperate. At the very heart of the system is a deep tension – a tension between principle and practice, between justice and self-interest, between the powerless and the powerful. It is a tension that has permeated the relationship between Aboriginal peoples and international law. In a system run by states, for states, the very same obstacles encountered by indigenous peoples at the domestic level would seem to bar the way to progress within the international arena.


The history of the troubled relationship between indigenous peoples and international law makes bleak reading.3 Given the crucial role played by international law in securing the colonization and subjugation of indigenous peoples, it is difficult to imagine how it could be said to provide a promising forum in which the contemporary claims of indigenous peoples to self-determination and sovereignty could be successfully advanced. However, despite the injustices committed against them, indigenous peoples have never abandoned the struggle for recognition of their rights under international law.4 Indeed, determined to fight for recognition of their true international status, international law is perceived by many indigenous peoples as the only appropriate forum for advancing their claims which are regarded as ‘essentially and fundamentally international in character’.5 Indigenous peoples have therefore resolutely refused to accept the ‘domestic status’ to which nineteenth-century positivists abandoned them.6 In more recent years, this determination to keep pushing at the conscience of the international community has been rewarded, with international law gradually responding more and more positively to the critical situation facing many indigenous peoples around the world. Facilitated by a number of important changes in the conceptual structure of international law, the post-1945 era has witnessed some highly significant developments in the field of indigenous rights.7 Although the positivist school continues to exert a strong constraining hold over the ‘revolutionary’ potential of international law, the complex interaction of international law’s constituent members with one another and with the IGOs, NGOs and numerous other organizations who together constitute the conscience of the international community, indigenous rights have enjoyed a certain renaissance. Perhaps most importantly, indigenous peoples have once again been able to claim their place as legitimate subjects of international law.8


The second half of the twentieth century saw a number of significant achievements for indigenous peoples. Concern for the situation of indigenous peoples at the international level was in many ways spearheaded by the ILO. The adoption of ILO Conventions No. 107 and No. 169 played a central role in bringing indigenous peoples back into the framework of international law.9 It was, however, the UN’s comprehensive agenda and increasingly high-profile work on indigenous rights that helped transform the legal landscape for indigenous peoples. In recent years, led by the work of the UN Working Group on Indigenous Populations (WGIP) and its associated expert mechanisms,10 the UN has significantly raised the profile and status of its work in the field of indigenous rights. A Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples was appointed in 2001,11 a Permanent Forum on Indigenous Issues was established as a subsidiary organ of the Economic and Social Council in 2000,12 and in 2007 the Human Rights Council established a new Expert Mechanism on the Rights of Indigenous Peoples as a subsidiary body of the Human Rights Council to replace the now disbanded WGIP.13 These various mechanisms have all played a crucial role in raising awareness of the critical problems faced by indigenous peoples and have provided an important platform for discussion and debate between indigenous communities and the wider international community. Although many questions pertaining to indigenous rights remain deeply contentious, this has allowed the UN to make enormous strides towards building an international consensus on a number of core indigenous issues.14 Nowhere is that ‘core of common opinion’15 more evident than in the General Assembly’s adoption of the United Nations Declaration on the Rights of Indigenous Peoples in September 2007.16


The Declaration constitutes an important landmark for indigenous relations with the international community. Although not legally binding, the UN Declaration constitutes a fundamentally important statement of the rights of indigenous peoples under international law that is capable of exerting a powerful influence over both international and domestic policy-making in this area.17 It contains a number of ground-breaking provisions, not only setting down a number of important substantive guarantees as to indigenous rights, but also providing strong recognition of the conceptual basis for the international subjectivity of indigenous peoples. The Declaration’s preambular paragraphs are particularly revealing as to the transformation that has occurred in the approach of the international community towards the status of indigenous peoples. Of particular significance is the unqualified recognition afforded to all indigenous peoples as peoples ‘equal to all other peoples’ under international law. Closely allied to this unqualified recognition of indigenous peoples as a ‘peoples’ is the recognition afforded to their original and continuing subjectivity under international law. The ‘historic injustices’ suffered by indigenous peoples ‘as a result of their colonization and dispossession of their lands, territories and resources’ is acknowledged, as is the original nation-to-nation relationship between states and indigenous peoples in the recognition accorded to treaties and other agreements between states and indigenous peoples as matters of ‘international concern, interest, responsibility and character’.


The collective nature of the rights of indigenous peoples is a key feature of the Declaration and is again specifically acknowledged within the preamble. Contrary to the traditional state/individual dichotomy entrenched in international law, the Declaration recognizes indigenous peoples as distinct collectives standing between indigenous individuals and the state and holding rights and responsibilities with respect to their own citizens in fields such as governance and citizenship which are akin to the rights and responsibilities international law has long recognized and protected as inhering within states. Overwhelming emphasis is placed on the collective autonomy of indigenous peoples in their political, legal, social and economic lives, at the heart of which is acknowledged to be the right of indigenous peoples ‘to practice and revitalize their cultural traditions and customs’.18 The right of indigenous peoples to maintain and strengthen ‘their distinct political, legal, economic, social and cultural institutions’19 is thus recognized, alongside their right to promote, develop and maintain their own ‘institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in cases where they exist, juridical systems or customs’.20 Closely linked to the right of indigenous peoples to maintain and develop their own ‘decision-making institutions’21 is the right to exercise effective control over their own lands and their own economic and social development.22 However, the singularly most significant development in the Declaration is the inclusion within its substantive provisions of the unequivocal, unqualified right of indigenous peoples to self-determination. In the words of Article 3:


Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.


Underpinning all other measures in the Declaration, the right to self-determination has potentially profound implications for states in terms of their future relationship with indigenous peoples.


In accepting the international standing of indigenous peoples and the possibility of an unqualified right to self-determination, the Declaration represents an extraordinary transformation in the treatment of indigenous peoples under international law. As Thornberry commented with respect to the Declaration when still in draft form, ‘[t]here is no more “radical” document in the field of international human rights. In the spectrum from reform to revolution, the text reaches towards the upper revolutionary end’.23 This, of course, makes the Declaration extremely contentious. It is not without significance that the initial attempt to secure the General Assembly’s adoption of the Declaration was deferred due to concerns expressed by a number of African countries,24 and when finally put to a vote in September 2007, Canada, Australia, the United States and New Zealand all voted against (although all four states have subsequently endorsed it).25 Despite the controversy surrounding its adoption, the Declaration’s significance in pushing forward the indigenous rights agenda should not be underestimated. The Declaration has already started to play a central role in structuring international relations between indigenous peoples and states under international law.26 It will increasingly provide the context within which the international debate on the rights of indigenous peoples, including the right to self-determination, will be conducted, and will stand as a benchmark against which the decisions and actions of states will be subjected to critical analysis and evaluation. Both the Special Rapporteur and the Permanent Forum have strongly embraced the Declaration as providing the relevant normative standards for their work with states in the field of indigenous rights. There are early signs that the Treaty bodies are similarly prepared to embrace the Declaration as an important interpretative tool.27 Despite the strong voices standing out against its legally binding character,28 the Declaration and its controversial provisions are therefore already strongly entrenched within the normative framework of international law. It will constitute a continuing source of pressure on states to bring their practices and policies on indigenous peoples into line with its provisions.


Indigenous Peoples’ Right to Self-Determination under Article 3 of the UN Declaration


Self-determination is central to the aspirations of indigenous peoples. Having witnessed the powerful role played by self-determination in the decolonization of Africa and Asia, it is the promise of self-determination to deliver effective liberation from colonial rule and return sovereign authority and power to indigenous communities that has captured the collective imagination of indigenous peoples around the world. As the international indigenous movement has grown in strength and influence, the right to self-determination has thus become their distinctive rallying cry. Yet, the struggle for recognition is not an easy one. Whilst indigenous peoples perceive the right to self-determination as a potentially powerful liberating force, states perceive it as a potentially destabilizing threat. The right of indigenous peoples to self-determination under international law is thus hugely controversial. This controversy is further complicated by the fact that self-determination is itself a complex and fiercely contested concept.29 A lack of clarity as to who may claim the right to self-determination and what the substance of that right may entail has, in recent years, exacerbated the difficulty in finding a consensus on the specific question of indigenous peoples and the right to self-determination. This makes the successful inclusion of an unqualified right to self-determination in Article 3 of the UN Declaration all the more remarkable.


It is natural that in the wake of the adoption of the Declaration, discussion has turned to focus on the scope, meaning and significance of the right to self-determination as enshrined in Article 3.30 The exact meaning of the right remains deeply contested. Debate centres on whether Article 3 is simply intended to recognize and confirm an existing customary law right of indigenous peoples ‘as a colonized peoples’ to self-determination under international law or marks a new and novel approach to the distinct situation of indigenous peoples trapped within the territorial boundaries of a post-colonial state.31 With the scope and meaning of Article 3 still to be determined, it is important not to lose sight of the crucial question of whether indigenous peoples have an existing customary law right to self-determination. Not only is any such right already legally binding on states, thus overcoming the non-legally binding nature of the Declaration as a whole, but it is vital that the customary law right should inform current discussion as to the scope and meaning of Article 3, in particular by keeping to the fore of the debate the inextricable link in international law between the right to self-determination, decolonization and sovereignty. Undoubtedly, the content of indigenous peoples’ right to self-determination as informed by customary international law will be stronger and potentially more far-reaching than any ‘new’ and ‘unrestrained’ interpretation of a sui generis right to self-determination ‘created’ by the Declaration. The well-trodden debate over the existing right of indigenous peoples to self-determination is not therefore rendered defunct by the Declaration but should be re-ignited by it.


A ‘Colonized Peoples’ with an Existing Right to Self-Determination under Customary International Law

Are indigenous peoples ‘colonized peoples’?

Indigenous peoples have consistently maintained that as the colonized population of a discrete territory, they constitute a ‘colonized peoples’ within the accepted categories of international law. As a matter of principle, this argument is utterly convincing. Indigenous peoples, as all other peoples subjected to alien subjugation and domination, should therefore have a clear and unfettered right to self-determination as currently entrenched and understood in international law: they are, in other words, entitled to decolonization. However, such is the nature of international law, whilst the arguments may be sound in principle, establishing a solid legal basis for such a conclusion in the opinion and practice of states is a more difficult task.


There is no one formally accepted or ‘official’ definition of the term ‘indigenous peoples’ employed within the United Nations.32 Attempts to include such a definition within the UN Declaration on the Rights of Indigenous Peoples 2007 were strongly opposed by indigenous groups who insisted on their right to self-identify as indigenous.33 In the absence of a formal definition, the most authoritative guidance as to what is meant by the expression ‘indigenous peoples’ is the definition contained within Article 1 of ILO Convention No. 169 and the working definition set down by Martinez Cobo in his Study of the Problem of Discrimination against Indigenous Populations back in 1986.34 These somewhat tentative definitions provide a useful starting point in determining whether or not indigenous peoples can be said to share the key characteristics and experiences of a colonized peoples.


A distinctive feature of both definitions is the fundamental connection drawn between indigenous peoples and a particular territorial base. The Cobo definition of indigenous peoples refers to their ‘historical continuity with pre-invasion and pre-colonial societies that developed on their territories’ and the determination of indigenous peoples ‘to preserve, develop and transmit to future generations their ancestral territories’. The ILO definition similarly refers to the descent of indigenous peoples ‘from the populations which inhabited the country, or a geographical region to which the country belongs’. For indigenous peoples, their special relationship with the land has always been a defining feature of their cultures. As it was put before the WGIP:


Many indigenous representatives emphasized that land was at the core of their existence and that the relationship with their land was of spiritual, cultural, and material significance. Besides the question of self-determination, access to and control over lands, territories and natural resources were central for indigenous peoples throughout the world. Indigenous peoples depended on their land for their material and cultural survival and in order to survive they needed to be able to own, use, conserve and organise their own lands, territories and resources. The relationship to land of indigenous peoples was based on a unique philosophy of life and culture and a cosmic vision which evolved from the earth. Several indigenous representatives stated indigenous peoples were the caretakers of the land and that the land took care of them in return. Never before had indigenous communities been in such danger of extinction.35


The emphasis placed on indigenous peoples and their special relationship with the land is not, however, to ignore the fact that many indigenous peoples now find themselves permanently separated from their traditional territories.36 Indeed, from the perception of indigenous peoples, the fact that many indigenous groups have been dispossessed of their land through the forces of conquest or colonization is a vital part of their identity. Both definitions recognize this crucial factor in understanding the contemporary position of indigenous peoples. Cobo refers to indigenous peoples’ historical continuity with ‘pre-invasion and pre-colonial’ societies living on their territories. The ILO Convention refers to occupation of the territory by indigenous peoples ‘at the time of conquest or colonisation’. It is these experiences of ‘conquest and colonisation’ and the resulting alienation of indigenous peoples from their traditional lands that stand indigenous peoples apart from all other minority or sub-state groups.37


Many indigenous peoples clearly perceive themselves to be the victims of colonialism, arguing that they have been subjected to a form of alien domination depriving them not only of their land and resources but sovereignty over their own economic, social, cultural and political affairs. In May 2001, an Indigenous Peoples’ Millennium Conference was held in Panama in preparation for the World Conference Against Racism to be held in Durban, South Africa, later that year. The agreed statement produced at that Conference clearly emphasizes the colonial context in which indigenous issues must be considered. The preamble sections are particularly striking:


We note particularly the Declaration of Indigenous Peoples of the Americas and its finding that racial discrimination, xenophobia and related forms of intolerance are characteristics of dominant Western ideology and are reflected in the relationship Western society has maintained with the Indigenous Peoples of the world, constituting a historical problem with deep roots in colonialism and the enslavement of entire peoples, a problem that continues to this very day, denying Indigenous Peoples their right of self-determination … We recognise that colonialism in all its expressions continues to rob us of our ancestral knowledge, cultural and spiritual practices, of our economies and way of life of our Peoples, as well as our cultural and intellectual heritage which forms a part of our spirituality. It is the cause of the loss and ruination of our sacred places, the loss of our traditional health practices and traditional knowledge, and even now extends to the loss of our plant, animal and human genetic resources.38


The preamble goes on to adopt language commonly employed by the UN with respect to the decolonization of colonial territories in the post-Second World War period, calling upon states to ‘comply with their sacred trust and to guarantee the right of decolonization and self-determination to all Indigenous Peoples in non-self-governing territories’.39


The close link between indigenous peoples and experiences of colonial domination is also emphasized by Miguel Martinez in his final report as UN Special Rapporteur on treaties, agreements and other constructive arrangements between states and indigenous populations. Martinez takes the position that there is a need to draw a clear distinction between indigenous peoples and minorities, arguing that it is the European powers’ organized colonization of other continents on which indigenous peoples had lived since time immemorial that stands indigenous peoples apart from any other ethnic minority group.40 Martinez’s attempt to tie the concept of indigenous peoples so closely to patterns of colonial expansion is controversial.41 However, it has the clear advantage that as a culturally discrete, formerly sovereign group with a marked territorial base from which they have commonly been permanently dispossessed through experiences of conquest and/or colonization, indigenous peoples have a tolerably clear and distinct identity under international law.42 The crucial question is whether these distinctive characteristics are sufficient to establish indigenous peoples as a ‘peoples’ under international law.


International law has yet to provide us with any comprehensive definition of a ‘peoples’. There is thus no one accepted set of objective criteria by which a claim to ‘people-hood’ may be determined. International law has preferred to proceed on a pragmatic basis taking each ‘contender group’ on an individual basis. The status of certain categories of peoples under international law has now been established with a fair degree of certainty. It is thus clear that the whole population of a state constitute a ‘peoples’ under international law,43 as do the population of an overseas colonial territory.44 Both of these groups have a right to self-determination and are entitled to exercise that right in both its external and internal dimensions.45 It is equally clear under international law that minorities do not constitute a ‘peoples’ and, consequently, do not have a right to self-determination, howsoever defined.46 The question is where, if anywhere, indigenous peoples fit within this framework.


The strong relationship between indigenous peoples and a discrete territorial base, alongside their experiences of dispossession and living under alien rule and domination, provides a strong foundation for the argument that indigenous peoples are a colonized peoples falling within the scope of GA Res. 1514 (XV) on the granting of independence to colonial countries and peoples and GA Res. 2625 (XXV) on principles of international law concerning friendly relations and co-operation among states in accordance with the Charter of the United Nations. However, one immediate difficulty with this argument lies in the concept of colonialism contained within GA Res. 1541 (XV) on the Principles Which Should Guide Members in Determining Whether or Not an Obligation Exists to Transmit the Information called for under Article 73e of the Charter. Principle IV of GA Res. 1541 (XV) has given rise to what has commonly been described as the ‘salt-water’ thesis. In guiding states as to whether or not they have an obligation to transmit information under Article 73(e) of the UN Charter on Non-Self-Governing Territories, Principle IV provides:


Prima facie there is an obligation to transmit information in respect of a territory which is geographically separate and is distinct ethnically and/or culturally from the country administering it (emphasis added).


The idea that the colonial territory must be ‘geographically separate’ from the country administering it has generally been interpreted to mean that the two territories must not be contiguous. Whilst indigenous peoples would therefore have qualified as a colonial peoples when the colonies of the New World were administered from Europe, the process of incorporating the traditional territories of the indigenous peoples within the territorial boundaries of the ‘post-colonial’ state, making them in effect colonial enclaves, would seem to exclude them from this particular definition. The unsatisfactory nature of this approach to colonialism is illustrated by the arbitrary distinctions to which it gives rise. A slightly different approach to identifying colonial territories is, however, suggested in Principle V of Res. 1541 (XV), focusing not so much on the ‘separateness’ of the territory, as its ‘distinctiveness’:


Once it has been established that such a prima facie case of geographical and ethnical or cultural distinctness of a territory exists, other elements may then be brought into consideration. These additional elements may be inter alia, of an administrative, political, juridical, economic or historical nature (emphasis added).


This idea of territorial distinctiveness would allow for a more nuanced approach to the complex reality of the legacy of colonialism. Moreover, it would be perfectly consistent with the much broader concept of colonialism contained within GA Res. 1514 (XV) and GA Res. 2625 (XXV).


GA Resolution 1514 (XV) contextualizes the right to self-determination by providing that, ‘the subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights’ (emphasis added).47 The Resolution goes on to make it clear that this right is not restricted to those territories which have been officially designated as either trust or non-self-governing but extends to ‘all other territories which have not yet attained independence’.48 The wording of GA Res. 2625 (XXV) is similarly susceptible to a more inclusive interpretation, providing in general terms that every state has the duty to promote the self-determination of peoples, ‘to bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned; and bearing in mind that subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as a denial of fundamental human rights’ (emphasis added). Thus, rather than focusing on the geographical separation of the colonized territories, at the heart of the concept of colonialism enshrined in GA Resolutions 1514 (XV) and 2625 (XXV) is the notion of a peoples who are or have been subjected to some form of alien subjugation, domination and exploitation.


The argument that peoples with a discrete territorial base who are subjected to sustained political, economic and cultural oppression can be appropriately described as a ‘colonized peoples’ has found some support from Thomas Franck, albeit he terms the position one of ‘neo-colonialism’.49 As thus conceived, indigenous peoples have a strong argument that having first been subjected to ‘alien’ rule by the European colonizers from the seat of the imperial power itself and then by the equally ‘alien’ government of the post-colonial state, they fall squarely within the concept of colonialism. The formal severing of links between the European powers and the settler communities clearly did not alter the colonial reality for the indigenous population. Disenfranchised and highly marginalized by the settler population, the geographic location of the seat of ‘European’ power did not alter its fundamental economic, social, political and cultural distance from the indigenous population. That is not to say, however, that territorial distinctiveness is not important. The existence of a territorial base remains closely tied to the concept of a ‘colonized peoples’ within the two resolutions. The emphasis in Resolution 2625 (XXV) is, however, somewhat different, with the General Assembly focusing not on the fact of geographical separation but on the continuing status of the territory as ‘distinct and separate’ from that of the administering power:


The territory of the colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or Non-Self-Governing Territory have exercised their right of self-determination in accordance with the Charter (emphasis added).


There is certainly no reason in principle why a colonial enclave cannot have a separate and distinct status from that of the surrounding territory, even if sustaining a case of geographical separation is more difficult.


Support for the ‘people-hood’ of indigenous peoples at the international level

Historically, states have demonstrated a clear reluctance to accept the use of the term ‘peoples’ when dealing with the rights of indigenous peoples at the international level. Although ILO Convention No. 169 does employ the term, its importance is substantively undermined by the heavy qualification contained within Article 1(3) that, ‘the use of the term peoples within this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law’. The UN’s approach has been deliberately cautious. The Working Group of the Sub-Commission on Prevention and Discrimination and the Protection of Minorities (the WGIP) used the language of ‘populations’; the Special Rapporteur on the situation of human rights and fundamental freedoms uses the term ‘people’; and the Permanent Forum effectively avoids the issue by calling itself the ‘Permanent Forum on Indigenous Issues’. There was also considerable disappointment at the position adopted in the Durban Declaration and Programme of Action following the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (2001). Preceding the Durban Conference there had been strong support from the WGIP for indigenous peoples to be recognized as ‘peoples’, ‘thereby ending the discriminatory practice of using terms such as indigenous populations or indigenous people when such peoples are referred to collectively’.50 However, although the problems faced by indigenous peoples are referred to quite extensively throughout the Declaration, indigenous peoples were fiercely critical of the final text for the inclusion of an express disclaimer in paragraph 24 that the use of the term indigenous peoples ‘cannot be construed as having any applications as to rights under international law’.51


At the institutional level there have, however, in recent years been significant signs of a change in approach. The UN website, for example, makes consistent use of the term ‘indigenous peoples’. In a more formal setting, UN documentation on indigenous peoples, such as the various reports of the WGIP and the Special Rapporteur, make constant reference to indigenous peoples as ‘peoples’.52 The term ‘indigenous peoples’ was also used without qualification in the Johannesburg Declaration on Sustainable Development (2002).53 The strongest support at the level of the UN for the ‘people-hood’ of indigenous peoples, has come, however, from the work of the UN Human Rights Committee. The Committee has refused to hear arguments relating to the right to self-determination contained within Article 1 of the Covenant under the individual complaints procedure.54 It has, however, provided clear guidance on the question of the status of indigenous peoples through the State Party reporting procedure. The Committee’s Concluding Observations with respect to Canada’s fourth periodic report were unequivocal in this regard, with the Committee making it clear that as indigenous peoples are a ‘peoples’ under international law with a right to self-determination under common Article 1 of the International Covenants, Canada must report under this provision on issues relating to Aboriginal self-government and Aboriginal access to land and resources.55


Although the views of the Human Rights Committee are not binding on states, they constitute authoritative confirmation at the international level of the ‘people-hood’ of indigenous peoples. The Committee had clearly been moving towards this position for some time, with their comments on states such as Norway and Australia also making it clear that issues pertaining to indigenous peoples, whilst relevant to Article 27, should also be considered as falling within the ambit of Article 1. As Mr Scheinin of the Committee explained to the Australian delegation appearing before the Committee on the examination of Australia’s third and fourth periodic report:


[T]he delegation had not given much support to the idea that the situation of indigenous peoples should be seen as an issue under article 1 of the Covenant. The Committee had on many occasions dealt with article 1 issues together with article 27 issues where indigenous peoples were concerned. Its case law repeatedly emphasised that for State parties to comply with article 27, it was essential that they should ensure the sustainability of the way of life of indigenous people and also secure their effective participation. He would suggest that strengthening the protection of indigenous peoples under article 1 would give depth and substance to Australia’s implementation of other provisions of the Covenant.56


The Committee then goes on to reiterate this point in its Concluding Observations by dealing with questions relating to Aboriginal autonomy and control over their traditional lands and resources under Article 1 of the Covenant.57 A similar approach is taken with respect to Norway, the Committee stating in its concluding observations that, ‘as the Government and Parliament of Norway have addressed the situation of the Sami in the framework of the right to self-determination, the Committee expects Norway to report on the Sami people’s right to self-determination under Article 1 of the Covenant, including paragraph 2 of that article’.58


The position now being increasingly adopted by the institutions of the UN and, most importantly, by the Human Rights Committee, places significant pressure on states, particularly those who are parties to the Covenant, to accept the ‘people-hood’ of indigenous peoples under international law. In recent years there have therefore been some important concessions by key states such as Canada, Australia and the United States. The Canadian government, whilst remaining cautious on the issue of self-determination, has accepted at the international level that indigenous peoples are not just members of an ‘ethnic group’ but have a ‘unique’ status and ‘unique entitlements’. It thus included within both its 1993 and 2001 Reports (the latter worded in slightly stronger terms than the former) to the UN Committee on the Elimination of Racial Discrimination, the important proviso that:


While the Convention does not specifically refer to indigenous people, this report continues the practice of covering aspects of the situation of the Aboriginal peoples of Canada that are relevant to the Convention. It must be emphasised, however, that the Aboriginal peoples of Canada are not considered to be members of an “ethnic group” by either Aboriginal people themselves or the federal government. Emphasis is accorded the unique situation of Aboriginal peoples as Canada’s original inhabitants and affirms their special relationship with the State, based on unique entitlements.59


Canada’s position on the use of the term ‘peoples’ remains ambivalent. There are, however, signs of an increasing willingness amongst Canadian delegates appearing at the UN to adopt the language of ‘peoples’ rather than ‘people’ or ‘population’. For example, the representative of Canada appearing before CERD at the examination of Canada’s thirteenth and fourteenth state periodic reports stated that ‘Canada recognised both indigenous and non-indigenous collectivities who qualified as “peoples” under international law had a right of self-determination’.60 The United States has recently signalled a similar change of policy to allow the use of the term ‘peoples’ by its delegates appearing before a range of international fora.61


Most significantly, however, these positive signs of a growing willingness amongst states to accept the use of the term ‘peoples’ at the international level has been translated into a concrete endorsement of their ‘people-hood’ in the UN Declaration on the Rights of Indigenous Peoples. The question of whether or not indigenous peoples should be referred to as a ‘peoples’ was a thorny issue throughout negotiations on the Declaration. The position of indigenous peoples was put before the Working Group established by the Commission on Human Rights to draft the UN Declaration on Indigenous Peoples (HRC Working Group) in forceful terms. An explanatory note circulated by the indigenous representatives at the Working Group in 2001 put their case clearly:


Since the establishment of the Working Group on Indigenous Populations in 1982, indigenous representatives have consistently asserted the critical importance of accurately identifying peoples as “peoples” in the work of the United Nations. There can be no doubt that we are peoples with distinct historical, political and cultural identities and will remain so. We are united by our histories as distinct societies, as well as by our languages, laws and traditions … Clearly, States are obliged to refrain from any action which undermines or violates the Charter of the United Nations. In regard to recognition of our status as “peoples” and our right to self-determination, we call upon the Commission on Human Rights and all States present at this session of the working group unequivocally to resist any attempts by individual States to contravene the purposes and principles of the Charter by proposing a distinction based on race or other prohibited grounds. In particular, by proposing to square bracket the term indigenous peoples, some States are seeking to open the door to developing double standards that are clearly discriminatory.62


The fears of some states were, however, expressed equally clearly both at the HRC Working Group and at the WGIP. The representative of Brazil, for example, made his concerns clear to the WGIP, pointing out that:


[T]he use of the word “peoples”, in the plural, would allow interpretation to the effect that indigenous people would be beneficiaries of the right to self-determination. That interpretation would make indigenous peoples the subject of international law, which was inconsistent with existing national constitutional and international law.63


Brazil was clearly not alone in its fears as regards the legal consequences of accepting the status of indigenous peoples as ‘peoples’.64 Such was the sensitivity of the issue that the reports of the HRC Working Group all contained an early disclaimer as regards the terminology employed in the report:


This report is solely a record of the debate and does not imply acceptance of the usage of either the expression “indigenous peoples” or “indigenous people”. In this report both are used without prejudice to the positions of particular delegations, where divergences of approach remain.65


That disclaimer was accompanied in later reports (as of 2000 onwards) by an explanatory note explaining in more detail:


There is no consensus on the use of the term “indigenous peoples” in the working group, in part because of the implications this term may have in international law, including with respect to self-determination and individual and collective rights. Some delegations have suggested using other terms in the declaration such as “indigenous individuals”, “persons belonging to an indigenous group” or “persons belonging to indigenous peoples”. In addition, the terms used in individual articles may vary, depending on the context. Hence, the bracketed use of the term “indigenous peoples” in the draft declaration is without prejudice to an eventual agreement on terminology.66


In the final stages of the drafting process there were, however, important signs that state opinion at the working group was beginning to swing in favour of accepting the status of indigenous peoples as a ‘peoples’. From 2000 onwards, the early disclaimer over the use of terminology was followed immediately by a separate paragraph noting the view of indigenous representatives that ‘all indigenous representatives and some Governments could accept the expression “indigenous peoples” as used in the current text of the draft declaration’.67 It is perhaps telling that in the 2002 report the wording of the paragraph was changed to state that ‘many Governments’ could now accept the expression ‘indigenous peoples’.68 The reports of the HRC Working Group record that key states with indigenous populations such as Bolivia,69 Chile,70 Finland71 and Australia72 were all willing to accept the term ‘peoples’, subject to important qualifications concerning the right to self-determination.73


The clear consensus which emerged from the HRC Working Group on the use of the term ‘indigenous peoples’ is strongly reflected in the final text of the Declaration where it is used throughout without qualification or restriction. Indeed, the preambular paragraph affirms in clear and unequivocal terms that ‘indigenous peoples are equals to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such’. It is significant that at neither the debate preceding the decision of the third committee of the General Assembly in November 2006 to defer consideration of the Declaration nor the subsequent debate at the plenary session of the General Assembly in September 2007 at which the Declaration was finally adopted, did states express any opposition to this key aspect of the final text.74


Colonized peoples and the scope and meaning of the right to self-determination

We have thus reached the point, culminating in the adoption of the UN Declaration, where there is sufficiently strong and consistent state practice to support the position that indigenous peoples are entitled to recognition of their ‘people-hood’ under international law. Such recognition is of potentially enormous significance. In the case of the classic decolonization process of the 1960s and 1970s, once the population of a colonized territory had been recognized as a ‘peoples’ under international law, the right to self-determination followed. Clearly in principle, as a ‘colonized peoples’, indigenous peoples should be entitled to the same right to self-determination in terms of its scope and meaning, the manner of its exercise and any limitations or restrictions placed upon it, as the right enjoyed by any other colonized peoples under international law. Any other conclusion would be to treat indigenous peoples less favourably than all other peoples, opening up the international community to accusations of discrimination and hypocrisy. As the argument was put by indigenous representatives to the HRC Working Group: