The following comments provide an analysis of document GT/DADIN/doc.334/08 rev. 12, which includes both the original English and Spanish versions of the text of the American Declaration on the Rights of Indigenous Peoples to be submitted to the General Assembly of the Organization of American States for its approval at its meeting in the Dominican Republic from 13 to 15 June 2016.
OBSERVATIONS ON THE PREAMBLE
i. The preamble does not identify Indigenous Peoples as Peoples, and thus does not recognize the right to self-determination as the guiding principle of relations between the state and Indigenous Peoples. The preamble to the UN Declaration on the Rights of Indigenous Peoples, in contrast, is structured around this premise, which enables Indigenous Peoples to define their legal status without state interference.
ii. The preamble emphasises integration. In fact, it reaffirms that Indigenous Peoples are original and diverse societies with their own identity that form an integral part of the Americas.
iii. States note their concern at the historic injustices suffered by the continent’s Indigenous Peoples but avoid taking responsibility for these events and ignore the fact that a colonial logic of subordination has been maintained with Indigenous Peoples, along with a systematic dispossession of their lands and resources.
iv. Although the preamble recognizes the intrinsic rights of Indigenous Peoples as deriving from their political, social, economic and cultural structures, such as rights to land, territory and natural resources, it does not explain that these intrinsic rights are the result of their legal status as distinct peoples with the right to self-determination.
v. The Declaration expounds the states’ intention to shore up the current economic model, validating indigenous models as a contribution to “sustainable and equitable development” and to the “proper management of the environment”. This statement omits Indigenous Peoples’ right to determine their own development priorities and preserve the integrity of the ecosystems that make up their territorial habitats.
vi. Instead of basing “harmonious and cooperative” relations between states and Indigenous Peoples on recognition of the right self-determination, the preamble bases them on principles of justice, democracy, respect for human rights, non-discrimination and good faith.
OBSERVATIONS ON THE TEXT OF THE DECLARATION
i. Article II recognizes and respects the multicultural and multilingual character of Indigenous Peoples but does not specify that the political community that makes up the state is multicultural or multilingual specifically because of the existence of Indigenous Peoples.
ii. Despite the integrationist nature of the preamble, Article III recognizes that Indigenous Peoples have the right to self-determination in the same terms as the UN Declaration on the Rights of Indigenous Peoples (hereinafter the UN Declaration).
iii. Article IV, however, affirms that the principle of the state's territorial integrity and political sovereignty takes precedence over indigenous self-determination. It differs from the UN Declaration in that, in this precept and what follows on recognizing the indigenous right to self-determination, the latter defines the implications of this and establishes that, in exercising this right, Indigenous Peoples have the right of self-government and autonomy over their internal affairs.
iv. Article VI takes a position on the collective rights of Indigenous Peoples. It does not specify that they have the collective right to define their legal status. It does, however, state that Indigenous Peoples' right to collective action is intrinsic to their status as collective subjects although, in this regard, it does not explicitly recognize the right to self-determination. Self-determination, in terms of autonomy or self-government, is the collective right that underpins the whole of the UN Declaration. In contrast, the American Declaration establishes that states shall promote, with the full and effective participation of the Indigenous Peoples, the harmonious coexistence of the rights and systems of the different population groups and cultures, thus obfuscating the concept of People and its legal implications for integration.
v. Article VIII refers to the right to belong to one or more Indigenous Peoples. This recognition could be problematic if it is not established that self-identification is the basis of ethnic membership, and also of multiple affiliations. Any resulting conflicts therefore have to be resolved by Indigenous Peoples' own institutions and not by state-imposed structures, unless these are accepted by the Indigenous Peoples.
vi. Article XII stipulates that reparations for the theft of indigenous heritage may include restitution but that this is discretionary rather than compulsory. To mitigate this, the UN Declaration states that Indigenous Peoples should be involved in defining these reparation mechanisms but there is no such qualification in the American Declaration.
vii. Paragraph 6 of Article XVIII on protecting the environment states that Indigenous Peoples have the right to be protected against the introduction of, abandonment, dispersion, transit, indiscriminate use or deposit of any harmful substance that could negatively affect indigenous communities, lands, territories and resources. This is in contravention of Article 29.2 of the UN Declaration, which categorically states that no storage or disposal of hazardous materials shall take place in the lands or territories of Indigenous Peoples without their free, prior and informed consent.
viii. Article XXII recognizes the right to autonomy and self-government in the same terms as Article 4 of the UN Declaration. It is notable, however, that in the American Declaration this right is listed separately from the right to self-determination as established in Article 3, analysed above.
ix. Article XXIV governs indigenous rights to the lands, territories and resources they have traditionally owned, occupied or otherwise used or acquired but does not recognize the right to ancestral ownership based on indigenous occupation and pre-existence.
The most important point here is in paragraph 5, which stipulates: “Indigenous Peoples have the right to legal recognition of the various and particular modalities and forms of property, possession and ownership of their lands, territories, and resources in accordance with the legal system of each state and the relevant international instruments. The states shall establish the special regimes appropriate for such recognition, and for their effective demarcation or titling”. This gives the state the power to determine the legal form of the demarcation, titling or recognition of indigenous rights to lands, territories and resources, when this should be defined by the Indigenous Peoples, in exercise of their right to self-determination.
It is worthy of note, in this regard, that the American Declaration falls short of the standards of the Inter-American Court of Human Rights (IHR Court) and is regressive in relation to the UN Declaration, which contains no reference to states' legal systems when defining rights to indigenous lands, territories and resources.
x. Article XXIX governs the right to development but does not include Indigenous Peoples' right to participate in the benefits of third party operations on their territories. Paragraph 6 envisages restitution and compensation as mitigating measures for projects that affect indigenous societies’ means of subsistence, although – under such conditions – the projects would not be possible unless the Indigenous Peoples had consented to them.
xi. Although Article XXX establishes that no military activities shall take place in the lands or territories of Indigenous Peoples as a general principle, it allows for such intervention when in the public interest.
*Produced by Nancy Yáñez Fuenzalida, lawyer and legal advisor to IWGIA and Joint Director of the Observatorio Ciudadano.