Indigenous Peoples' Rights

By Chief Abel Bosum, Ouje-Bougoumou Cree Nation, at Kennedy Library, Boston MA, 10 December 1994

We like to think of the UN as a world government that is responsible for a kind of universal sovereignty--laws that transcend the jurisdictions of individual States, or perhaps, law that cannot be entrusted to the single responsibility of individual States.

In fact, if we examine the history of the UN, it is obvious that it was founded to establish and enforce a higher standard of ethical and moral behavior than individual States may practice. We all know that the establishment of the UN in San Francisco directly at the end of the Second World War, was in reaction to the horrors of the Nazi regime.

The founding principle of the UN is that States do not have ultimate sovereignty with regard to the basic human rights and fundamental freedoms of their inhabitants; that this ultimate sovereignty is surrendered to the world body, and that although each State retains the responsibility to uphold and enforce human rights law, all States are subject to international oversight in this regard, and if necessary, international intervention.

The speeches that were made at the founding of the UN note that the need for the world to act in solidarity against Hitler's Germany was this same principle of world solidarity that was applied to the apartheid regime in South Africa, resulting in the very positive developments that have occurred there recently. Of course there was no UN when Columbus landed in the so-called New World, and from the look of things now, I would say that the Indians, the indigenous peoples of the Americans, could certainly have used a UN.

Many of you are familiar with the history of the indigenous peoples in the Americas, a succession of friendships and betrayals, treaties, and surrenders, ethnocide and genocide. It is unpleasant, and most Americans prefer not to dwell on it. The goal--to remove the indigenous peoples from the land--was largely accomplished; and it was all done according to law, although presumably in violation of principles of international human rights law that we accept today as valid. To compound the injustice, it was also done in such a way to deny the indigenous peoples any means of redress to the international community. This, we might say, is old and unpleasant history, and we should move on. The problem is that we cannot, for the very simple reason that what we take to be past history, is not really over--it persists. It persists throughout this hemisphere, and in the remaining places in the world where indigenous peoples survive.

We like to think that the broken treaties, the extermination and all of those other things that happened in the past--are unfortunate, but over, beyond our control now, no longer our responsibility. The truth is that grave violations continue against the human rights of the world's indigenous peoples. Violations continue in the US, Canada, Guatemala, Mexico, Brazil, Australia, Indonesia, Burma--I could continue.

Most Americans and Canadians are unaware of the fact that indigenous peoples' rights continue to be abused. I should point out that although this abuse is widespread, the severity and extent of abuses against indigenous peoples varies considerably from country to country.

In Guatemala, for example, those familiar with the experiences of my respected sister Rigoberta Menchu will realize that the abuse often consists of murder. In Canada and in the province of Quebec, where I am the chief of a Cree nation, the abuse has most often been dispossession and denial of individual freedoms. The question for you is: how can the international community help and how can you encourage the international community to help?

In principle, the objective of abuses against indigenous peoples has remained unchanged over the centuries. It is based on the principle that indigenous peoples are somehow inferior, should not be in possession of their lands, and have no right to govern themselves or look after their affairs. As a result, our lands were and are designated as terra nulluis, empty, not occupied by people. What is still ignored or denied, is that we have our own societies, laws, values, culture and spirituality.

While this attitude and the concept of terra nulluis might have been justifiable one or two hundred years ago, I have difficulty today condoning this practice in public law.

Our Cree people live in what is now the northern part of Quebec, a territory we have occupied continuously for at least 5000 years. This territory was allegedly given to the Hudson's Bay Company in 1670 by a European monarch who had never been in our land. It only became part of Canada in 1870, when it was named Rupert's Land. In 1898 and 1912 it was divided among several Canadian provinces, including the province of Quebec. Quebec only began to exercise some limited authority in the territory in 1963.

Today, a provincial government that is in power in Quebec wants to secede from Canada. As Indians, this would probably be a matter in which we would not get involved, except for the fact that the Quebec separatists (as they are called) insist that when they leave Canada, they will take eleven territories of indigenous peoples with them.

You might imagine that we, the original peoples in this territory, would have a say in this matter, that we cannot be denied our nationality or our lands without our consent. But the separatists say that we indigenous peoples do not have the right to self- determination, that our territory would be included in a Quebec republic with or without our consent; and right now they are in the process of passing legislation to accomplish their purpose.

This is a contemporary example of the principle of racial inferiority. The separatist leaders in Quebec insist that they have the right to break up Canada, but these same people insist that we have no right to remain in Canada, if that is our choice.

In Guatemala, the indigenous Mayan peoples comprise the majority of the inhabitants, yet they are systematically excluded from government; and when they try to organize they are murdered.

Therefore, what recourse, what means of redress do we indigenous peoples have? According to the law in both Canada and Guatemala, these are domestic issues only! In both cases indigenous peoples seeking remedies must address the domestic courts, and in effect seek relief from their own oppressors.

When an indigenous treaty is violated, when an indigenous territory is flooded to provide hydroelectricity, when an indigenous forest is clear-cut, when a military base is located on indigenous land, our people are forced to turn to authorities who have a vested interest in the outcome. We must pretend that they are purveyors of neutral and unbiased justice.

The two UN International Covenants protect all peoples from being denied their own means of subsistence. When I study the history of our peoples, I note that our existence has been characterized essentially by the denial of our own means of subsistence. Is there a better way to describe what has happened to our peoples in five hundred years and still continues?

My own people, the Ouje-Bougoumou Crees, have been forcefully relocated seven times between 1925 and 1975; and relocated is the polite way to describe what was done to us.

The fact that these abuses have continued for so long is evidence that the domestic authorities are not effective guardians of our rights, and that the standards that are applied for the protection of the rights of indigenous peoples are insufficient. I think this fact is fairly indisputable, yet where do we turn for help?

The obvious answer is the UN. In the UN, however, we face several problems. The UN is an organization of States, entrusted with the protection of universal human rights. But its personality as an organization, with each State protecting its own rights first and foremost, has prevented the UN from addressing certain large problems, such as the rights of indigenous peoples. This may be about to change.

In August 1994, a draft Declaration on the Rights of Indigenous Peoples was approved by the Sub-Commission on Prevention of Discrimination and Protection of Minorities. The declaration is the work of a committee of experts chaired by Dr. Erica Irene Daes, a Greek diplomat, and presently president of the UN Joint Inspection Unit.

The declaration recognizes that indigenous peoples have the right of self-determination. It uses language similar to the two International Covenants to guarantee that the rights of indigenous peoples are afforded the same protections as all other peoples. It recognizes the right of indigenous peoples to control their own resources and territories. It recognizes their control over the environment. It acknowledges that their consent is required before development can take place that would affect their rights, their lands, their resources or their environment. It protects the cultural property of indigenous peoples. It recognizes the status of indigenous law.

When you read this declaration, you will realize that it holds great potential for all of us. First, it brings indigenous peoples into purview of international law--it recognizes us as subjects of international law. Second, it extends the recognition of the existing international human rights instruments to our peoples. Third, it provides new international standards for the protection of our human rights.

A decade of effort went into the drafting of this new human rights instrument. The Grand Council of the Crees, the Inuit Circumpolar Council, the International Organization of Indigenous Resource Development, the Four Directions Council and the International Indian Treaty Council are only five of the indigenous non-governmental organizations in consultative status to ECOSOC that have taken an active role.

Several States are represented in the debates, including Canada and the US. The expert members of the Sub-Commission have been assisted by academics, legal scholars and international officials representing intergovernmental organizations, treaty bodies and the ILO.

Unfortunately, Canada and the US opposed recognition of our fundamental rights during discussions on the draft. Both countries fought against the inclusion of the right of self- determination; both opposed the right of consent. Neither Canada nor the US wanted to recognize the existence of the indigenous peoples as peoples under international law. Both countries take the position that aboriginals, Native Americans and indigenous peoples are domestic subjects, outside of the scope of international law.

In practice, this means that we are denied the protections of the International Covenants and other international instruments. The sad fact is that both Canada and the US have made common cause with countries such as Brazil, China, Indonesia, Iraq and the Philippines against the international recognition of our rights.

In 1993, we have a draft declaration which has survived ten years of debate in UN human rights bodies. It is a draft that contains many compromises regarding our rights. But it is the best we could hope to achieve within the UN system. It is clear that a declaration by the General Assembly based substantively on the present draft would advance the protection of the rights of the world's indigenous peoples to a considerable degree.

I will suggest what you can do to help. Understand that the draft Declaration on the Rights of Indigenous Peoples is still a draft. It has been approved by expert bodies, but it has not entered the political process at the UN. Several countries, Canada in particular, have threatened to make substantial changes in the text as soon as they have the opportunity.

Their changes are clear: eliminate the right of self- determination; eliminate the provisions which require States to obtain the consent of indigenous peoples to relocate indigenous communities or to conduct so-called development projects on indigenous lands. Eliminate the right of indigenous peoples to determine their own membership. Make indigenous law subject to and inferior to State law. Brazil, Canada and others are insistent that these changes will be made as soon as the Commission on Human Rights begins to consider the draft declaration in February 1995 in Geneva.

The draft declaration has a long journey through many political levels at the UN. First, the Commission on Human Rights, then the Economic and Social Council, then the Third Committee of the General Assembly, and finally the General Assembly itself. At any of these levels it can be changed by diplomatic representatives of UN member States who receive instructions from their governments.

To date, the US and Canada have worked against our interests, while some States such as Denmark and Australia gradually have come to support the rights in the declaration. We believe that Canada and the US should support the recognition and confirmation of our rights; and we believe that the world's indigenous peoples need the protections that this declaration would give. While we understand that we are only talking about a declaration which would be non-binding, and not an enforceable convention, we consider this to be an important beginning.

There is some good news for the future. In 1989, the International Labor Office approved a revised Convention (No. 169) on the Rights of Indigenous and Tribal Peoples. In 1992 and 1993, the indigenous peoples made important interventions at the World Conference on Human Rights in Vienna, and at the World Summit in Rio. 1993 was declared the International Year of Indigenous People. Rigoberta Menchu has founded the International Indigenous Initiative for Peace. On December 8 the UN declared the opening of the International Decade of the World's Indigenous People. There are now twelve recognized indigenous organizations with consultative status at the UN. We believe the UN is now ready to turn its attention to a problem which has been shamefully disregarded to the detriment of the universality of human rights law and the charter of the UN itself.

There is also powerful opposition to the recognition of our rights. Behind this opposition is fear. The States that have been erected upon our lands are powerful; but they are weakened by the atrocities of their history, and the illegitimacy of their origins. They have denied our rights and laws; and despite all of their power, they are unsettled by our claims.

We have made it clear that we are interested only in protecting our human rights--that we are not attempting to claim independence or to adjust the outcome of history. This must be understood. The indigenous peoples are asking for only one thing: protection of their rights under international law. The International Covenants make reference to internationally protected rights which pertain to all peoples. We are seeking the obvious: we want to be included in the phrase all peoples.

While it is hard for us to understand how we can be denied our status as peoples on any logical, intellectual or factual grounds, this is what certain UN member States are doing. Again, supposedly universal human rights standards are being subjected to the perceived higher interests of a State. We would point out that it is not in any State's interest to do this, and it is certainly not in the interest of the UN to subject the universality and indivisibility of human rights law to political interests.

We hope that the draft declaration is approved by the General Assembly without substantive change. We hope this will be followed by a binding international convention based on the same fundamental principles. Today, many indigenous peoples are endangered. We have waited years to have our rights addressed. Respect for our rights does not threaten existing States. But failure to protect our rights will have disastrous consequences for many indigenous peoples. We ask your assistance to achieve these goals. Thank you.