Briefing Paper on the Rights of Indigenous Peoples in International Law ByFergus MacKay, B.A., J.D.

Contents

About the Author

1. The International Covenant on Civil and Political Rights
2. The Convention on the Rights of the Child
3. The Convention on the Elimination of All Forms of Racial Discrimination
4. International Labour Organisation Convention No. 169

Fergus MacKay is a US-trained lawyer holding the degree of Doctor of Jurisprudence. He is an experienced human rights lawyer, specialising in the rights of Indigenous peoples in international law. He has practiced law in the United States and Canada, with an emphasis on Indigenous law. For five years, he was Legal Advisor to the World Council of Indigenous Peoples, based in Ottawa, Canada, and represented the WCIP at the United Nations, Organisation of American States and other international fora, as well as working on Indigenous issues in countries in the Americas, Asia and the Pacific. He is the author of a book entitled International Law, Intergovernmental Organisations and the Rights of Indigenous Peoples, which will be published this year by the Global Law Association, as well as a number of articles in legal journals concerning Indigenous rights. Presently he is a human rights specialist working for the UK-based Forest Peoples Programme and has worked with the Amerindian Peoples Association of Guyana for the past three years.

Before listing the international instruments ratified by Guyana, mention should be made of state obligations to implement ratified treaties. Article 31(1) of the Vienna Convention on the Law of Treaties reads: "[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning given to the terms of the treaty in their context and in light of its object and purpose." This is a fundamental principle of international law and applicable to all states irrespective of ratification of the Vienna Convention. The object and purpose of human rights instruments "is the effective protection of human rights and . . . the interpretation of all [their] provisions must be subordinated to that object and purpose . . . ." (IACTHR 1993, para. 37; IACTHR 1987, para. 30)

Upon ratification of most human rights treaties, states are obligated by the terms of the treaty to implement and provide remedies for the rights defined therein. Article 4 of the Convention on the Elimination of All Forms of Racial Discrimination, for instance, provides that states parties "undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination," with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of the Convention. See, also, article 2 of the International Covenant on Civil and Political Rights. These provisions are of a mandatory character.

The following international instruments, ratified by Guyana, are relevant to Indigenous peoples’ rights.

• International Covenant on Civil and Political Rights (1966)
• International Covenant on Economic, Social and Cultural Rights (1966)
• International Convention on the Elimination of All Forms of Racial Discrimination (1965)
• Convention on the Rights of the Child (1989)
• American Declaration on the Rights and Duties of Man (1948)
• CARICOM Charter of Civil Society (1997) – a declaration, not a binding treaty.
• Instruments, including the Convention on Biological Diversity (1993), adopted at the United Nations Conference on Environment and Development.

We will begin with the United Nations human rights instruments.

The International Covenant on Civil and Political Rights (ICCPR), (UN 1966), the Convention on the Rights of the Child (UN 1989) and the Convention on the Elimination of All Forms of Racial Discrimination (CERD) (CERD 1966) all contain provisions relevant to Indigenous rights. Other instruments, such as the International Covenant on Economic, Social and Cultural Rights (ICESCR), are also relevant, but will not be addressed in detail here.

Common article 1 of the ICCPR and ICESCR states in part that

The right to self-determination as enumerated in common article 1 has recently been applied to Indigenous peoples by the United Nations Working Group on Indigenous Populations (WGIP) and the UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities. The Inter-American Commission on Human Rights has also recognized some measure of this right - autonomy and self-government - in its Proposed Declaration. Self-determination in all its manifestations, political, territorial, economic, cultural, etc., is the key demand of Indigenous peoples and will be discussed in greater detail below.

Article 27 of the ICCPR applies to minorities and recognizes, inter alia, an individual right to enjoy one's culture in community with other members of the cultural collective. The UN Human Rights Committee (HRC) has interpreted this article to include the "rights of persons, in community with others, to engage in economic and social activities which are part of the culture of the community to which they belong." (HRC 1990, 1) In reaching this conclusion, the HRC recognized that Indigenous Peoples’ subsistence and other traditional economic activities are an integral part of their culture, and interference with those activities can be detrimental to cultural integrity and survival. (HRC 1990; 1988) By implication, the land, resource base and the environment also must be protected if subsistence activities are to be safeguarded.

In Kitok vs. Sweden, the HRC made reference to Lovelace vs. Canada (HRC 1981), in which it stated that "a restriction upon the right of an individual member of a minority must be shown to have a reasonable and objective justification and be necessary for the continued viability and welfare of the minority as a whole."(HRC 1988, 230) Therefore, any restriction upon a member of an Indigenous community to practice and enjoy their culture, especially as related to subsistence practices and their relationship to land and territory, must comply with the test above.

The HRC further elaborated upon its interpretation of article 27 by stating that

Employing language consistent with article 27 of the ICCPR, article 30 of the Convention on the Rights of the Child, should be interpreted in conformity with the views of the HRC above and with the decisions of the Inter-American Commission on Human Rights discussed below. This requires a recognition of the right to participate in the cultural life of the collective, especially as it relates to subsistence practices, relationship to land and territory and their educational and religious significance to the Indigenous child. States-parties have affirmative obligations to facilitate the enjoyment of these rights by, inter alia, recognizing, respecting and enforcing rights to land, territory and resources and all aspects of productive organization. Article 30 and ICCPR article 27 embody one manifestation of the general norm of international law relating to the right to cultural integrity. (Anaya 1991, 15; Prott 1988, 93)

Under the CERD, states-parties are obligated to, inter alia, respect and observe the right "to own property alone as well as in association with others."(CERD 1966, art. 5(d)(v)) This has been interpreted to include a recognition of Indigenous land rights based upon historical occupation and use (see, below). Furthermore,

Read together, these articles provide for the recognition and respect of Indigenous land and resource rights, cultural integrity and participation rights within the context of "affirmative action" programs specially designed to advance and protect the economic, social and cultural status and well-being of Indigenous peoples.

In a 1997 General Recommendation, the Committee on the Elimination of Racial Discrimination elaborated on state obligations and Indigenous rights under the Convention. (CERD 1997a) The Committee called upon states-parties to "ensure that members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent." (Ibid, 1) Additionally, to "recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return these lands and territories"(see, Annex I for full text). (Ibid)

This General Comment is undoubtedly influenced by the UN Draft Declaration. The reference to "informed consent" is particularly important as is the inclusion of "control" in the scope of Indigenous rights to lands and resources. Moreover, interpretations of CERD should carry additional weight given that the prohibition of racial discrimination has acquired the status of jus cogens – the highest level of international law - under international law, and therefore, will void any law or practice found to be in violation of the norm. (Brownlie 1990, 513)

In General Recommendation XXI (1996) on the right to self-determination, the Committee on the Elimination of Racial Discrimination said the following

This General Recommendation refers both to state obligations to implement and respect international human rights instruments and to the need to be particularly attentive to the rights of ethnic, Indigenous and other minority groups. It highlights rights related to "the preservation of the identity" of these groups and cultural integrity. In its 1997 General Recommendation on Indigenous peoples, the Committee stated that "[t]he Committee is conscious of the fact that in many regions of the world indigenous peoples have been, and are still being, discriminated against and deprived of their human rights and fundamental freedoms and in particular that they have lost their land and resources to colonists, commercial companies and State enterprises. Consequently, the preservation of their culture and their historical identity has been and still is jeopardized." Also in a case involving Aboriginal land rights in Australia, the Committee stated that ". . . the land rights of indigenous peoples were unique and encompassed a traditional and cultural identification of the indigenous peoples with their land that had been generally recognised." (CERD 1999, 2)

This section on UN instruments concludes with International Labour Organization Convention No. 169. ILO 169 and its predecessor, Convention No. 107 (ILO 1957) are presently the only binding international treaties that exclusively focus on the rights of Indigenous peoples. Neither instrument has been ratified by Guyana, but are included here as they are illustrative of recent international thought concerning Indigenous rights. The stated aim of ILO 107 was, and remains for its states-parties, the integration and assimilation of Indigenous peoples. Due to this lack of respect for Indigenous culture and identity, ILO 107 became an "embarrassment" to the ILO, (Berman 1988, 48-9) and, in 1986, a decision was made to revise it according to the principle that Indigenous peoples should "enjoy as much control as possible over their own economic, social and cultural development."(ILO 1988, 117) After a two year revision process, ILO 169 was adopted in 1989 by the International Labour Conference.

ILO 169, while not declaring a right to environment, is the first international instrument to relate environmental concerns explicitly to Indigenous peoples. Article 4(1), for instance, requires states to take "special measures" to protect the environment of Indigenous peoples. These special measures include environmental impact studies of proposed development activities (art. 7(3)), the recognition of subsistence rights (art. 23), protection of natural resources (art. 15(1)), and measures to protect and preserve the territories of Indigenous peoples (art. 7(4)).

Article 7(1) contains one of the most important principles of the Convention. It provides that

This article is one of the general principles of the Convention and provides a framework within which other articles can be interpreted. It recognizes that indigenous peoples have the right to some measure of self-government with regard to their social and political institutions and in determining the direction and nature of their economic, social and cultural development. Other general principles of the Convention require participation, consultation, good faith negotiation and the recognition of Indigenous land and resource rights based upon traditional occupation and use. Of particular importance, is article 13(1), which requires that "governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship."

As a party to the Charter of the Organisation of American States, Guyana is legally bound to comply with the American Declaration on the Rights and Duties of Man (1948). Guyana has not ratified the American Convention on Human Rights, however, the American Convention has been held to be an authoritative source with regard to interpreting state obligations under the American Declaration and, therefore, the difference between the two instruments is minimal. (IACHR 1974)

In 1972, the Inter-American Commission on Human Rights (IACHR) issued a resolution entitled, Special Protection for Indigenous Populations, Action to Combat Racism and Racial Discrimination. (IACHR 1972, 90-1) This resolution stated, inter alia: "[t]hat for historical reasons and because of moral and humanitarian principles, special protection for indigenous populations constitutes a sacred commitment of the states." (Ibid) The need for special protection for Indigenous peoples was recently reaffirmed by the IACHR in its 1997 Ecuador Report. (IACHR 1997, 115) Specifically, the IACHR stated that: "[w]ithin international law generally, and Inter-American law specifically, special protections for indigenous peoples may be required for them to exercise their rights fully and equally with the rest of the population. Additionally, special protections for indigenous peoples may be required to ensure their physical and cultural survival -- a right protected in a range of international instruments and conventions." (Ibid)

The IACHR’s Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin is illustrative of state obligations under the American Declaration and Convention. Concerning the rights of Indigenous peoples in Nicaragua, it states that

In 1985, the IACHR examined the rights of the Yanomami people in the context of the construction of the Trans-Amazonia highway in Brazil, invasion of their territory by small-scale gold miners and devastating illnesses brought in by the miners. (IACHR 1985) The IACHR found, due to Brazil's failure to take "timely measures" to protect the Yanomami, that violations of, inter alia, the right to life and the right to preservation of health and well-being under the American Declaration had occurred. (Ibid, 33) In reaching this conclusion, the IACHR reiterated the widely held conclusion that the right to life has broad application beyond intentional or arbitrary deprivation of life. (Ramcharan 1985) It also requires that governments take affirmative steps to protect life by ensuring environmental integrity and promoting policies that guarantee basic survival of persons subject to state jurisdiction. (Ibid)

In its Third Report on the Situation of Human Rights in The Republic of Guatemala, the IACHR found Guatemala responsible for acts and omissions detrimental to Indigenous "ethnic identity and against development of their traditions, their language, their economies, and their culture." (IACHR 1986, 114) It characterized these as "human rights also essential to the right to life of peoples."(Ibid) Note that this is stated as a right of peoples, as opposed to individuals, and therefore a collective right. Persistent and pervasive violations of these rights are generically referred to as ethnocide or cultural genocide which is prohibited by international law. This is supported by other instruments and documents which assert: that ethnocide results when a group is unable to live and develop in its unique way; (UNESCO 1981) that ethnocide is a serious violation of international human rights law; (UN 1985a) and that

Sub-paragraph (b) quoted above directly relates rights to land and resources to the prohibition of ethnocide. Contrary to genocide, which requires proof of intent, this article also prohibits actions, and presumably also omissions, that have the "effect" in addition to the intention of causing ethnocide.

In its Ecuador Report, IACHR directly relates the right to life to environmental security stating that "[t]he realisation of the right to life, and to physical security and integrity is necessarily related to and in some ways dependent upon one's physical environment. Accordingly, where environmental contamination and degradation pose a persistent threat to human life and health, the foregoing rights are implicated." (IACHR 1997b, 88) This report also recognized that state policy and practice concerning resource exploitation and land use cannot take place in a vacuum that ignores its human rights obligations. In doing so, it related human rights concerns to the regulatory framework and monitoring capacity of the state. Specifically, the Commission stated that it "recognizes that the right to development implies that each state has the freedom to exploit its natural resources, including through the granting of concessions and acceptance of international investment. However, the Commission considers that the absence of regulation, inappropriate regulation, or a lack of supervision in the application of extant norms may create serious problems with respect to the environment which could translate into violations of human rights protected by the American Convention." (IACHR 1997b, 89)

Building upon principles adopted at the United Nations Conference on Environment and Development and various articles of the American Convention, the IACHR highlighted the right to participate in decisions affecting the environment. (Ibid, 92-5) An integral part of this right is access to information in an understandable form. Emphasizing procedural guarantees and state obligations to adopt positive measures to guarantee the right to life, the IACHR stated that, "[i]n the context of the situation under study, protection of the right to life and physical integrity may best be advanced through measures to support and enhance the ability of individuals to safeguard and vindicate those rights. The quest to guarantee against environmental conditions which threaten human health requires that individuals have access to: information, participation in relevant decision-making processes, and judicial recourse." (Ibid, 93)

With regard to land rights, the IACHR stated

The Ecuador Report is a significant elaboration of state obligations with regard to the human rights-environment nexus, Indigenous land rights and cultural rights. The OAS Proposed Declaration has also addressed and contextualised to Indigenous peoples many of the issues noted above. This Declaration along with the UN Draft Declaration are discussed in the following section. These instruments have and will continue to influence interpretations of state obligations with regard to Indigenous peoples under the general human rights instruments discussed above and this should be borne in mind when reading the following section.

This section will deal with international instruments concerning the rights of Indigenous peoples that are presently being approved by inter-governmental organisations. These instruments have not been ratified by Guyana, but are highly instructive as to the correct interpretation of Indigenous rights as defined in instruments that Guyana has ratified, ICCPR, CERD and the American Declaration, for instance. Moreover, some of their provisions are restatements of customary international law and, therefore, binding upon Guyana.

Within the United Nations, discussion about Indigenous rights arose in the context of an expert study on racial discrimination. This study, submitted in 1969, concluded that the issue of discrimination against Indigenous peoples had not been adequately dealt with and required further attention. Consequently, a study on the Problem of Discrimination Against Indigenous Populations was authorized. Also known as the Cobo Report, this multi-volume report, completed in 1983, recommended that a declaration on the rights of Indigenous peoples be elaborated, with a view to ultimately developing a binding international convention.

Against this background, the Commission on Human Rights recommended the establishment of a Working Group on Indigenous Populations within the United Nations system. Established in 1982, the UN Working Group on Indigenous Populations’ most notable achievement to date has been the completion of a draft Declaration on the Rights of Indigenous peoples. This instrument, drafted with substantial Indigenous participation, is by far the most comprehensive and responsive attempt to recognize Indigenous rights drafted to-date. It is presently being examined by an inter-sessional Working Group of the Commission on Human Rights. (ISWG 1996, 1997) After it is approved by this Working Group, the Draft Declaration will then pass via the Economic and Social Council to the UN General Assembly for adoption. It will be approved, in whatever form, by the General Assembly before 2004, the end of the UN Decade of the World’s Indigenous People.

The OAS Proposed Declaration, started in 1989, was in part inspired by developments within the United Nations and the adoption of ILO 169 in 1989. It was approved by the IACHR in 1997 and, subsequent to a review by governmental experts meeting in early 1999 and further consultation with Indigenous peoples, will be submitted for adoption by the OAS General Assembly in the year 2000. Its use by the IACHR in interpreting state obligations under other Inter-American instruments may be its greatest significance.

Both the UN Draft and OAS Proposed Declarations, although to varying degrees, build upon existing standards, including ILO 169, and attempt to redefine prevailing political, economic and cultural relations between Indigenous peoples and states. (Daes 1993a, 4; Daes 1993b, 8-9; Barsh 1994, 39) They do so by recognizing rights in three main areas: 1) self-determination, autonomy and self-government; 2) lands, territories and resources; and; 3) political participation rights. These rights are all in some way related to fundamental guarantees of non-discrimination and cultural integrity, which are also elaborated upon by the instruments in question.

The UN Draft Declaration states in article 3 that, "Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely determine their economic, social and cultural development." (UNWGIP 1993a, art. 3) This language is consistent with common article 1 of the ICCPR and ICESCR, which includes the right to be secure in the means of subsistence, rights to the requisite resource base and the right to development in accordance with Indigenous priorities, cultural characteristics and needs. It also includes the recognition of and respect for Indigenous governing institutions and legal systems, which is also explicitly provided for in both the UN and OAS instruments. (IACHR 1997a, art. XVII; UNWGIP 1993a, arts. 4, 33 and 34)

The OAS Proposed Declaration recognizes rights that amount to a possible expression of the right to self-determination - autonomy and self-government within the state. For example, article XV(1) provides that

In her Explanatory Note on the UN Draft Declaration, the Chairperson of the WGIP explains that self-determination in this context requires that Indigenous peoples exercise their right to self-determination through the state’s political and legal systems." (Daes 1993a, 5) States have a corresponding duty to adopt legal, administrative and constitutional reforms that recognize the rights of Indigenous peoples to, among others, autonomy, self-government, territory, cultural integrity and participation based upon consent." (Ibid)

Recent normative developments relating to Indigenous lands, territories and resources are expansive, requiring legal recognition, restitution and compensation, protection of the total environment thereof, and various measures of participation in extra-territorial activities that may affect subsistence rights and environmental and cultural integrity. Article 26 of the UN Draft Declaration, for instance, provides that

The OAS Proposed Declaration also provides a substantial measure of protection (see, article XVIII). Both recognize and require protection of Indigenous peoples’ unique relationship with their lands and resources. Article 25 of the UN Draft Declaration, for instance, states that

The UN and OAS instruments include a right to restitution of Indigenous lands, territories or resources which have been "confiscated, occupied, used or damaged." (IACHR 1997a, art. XVIII(7); UNWGIP 1993a, art. 27) If restitution is not possible, then compensation is to be provided. Recall the General Comment on CERD, which also called upon states to provide restitution or compensation when impossible to do so. They also include articles providing for a right to environmental protection. (Ibid, arts. XIII and 28, respectively) The OAS Proposed Declaration includes many of the elements identified by the IACHR in its Ecuador Report and elsewhere - relationship to the right to life, measures to ensure effective participation and the right to information and remedies.

Due to the importance attached to Indigenous cultural, spiritual and economic relationships to land and resources, relocation is treated as serious human rights issue. Strict standards of scrutiny are employed and free and informed consent is required. Additionally, relocation may only be considered in extreme and extraordinary cases. The implicit statement contained in these standards is that forcible relocation is prohibited as a gross violation of human rights.

In conformity with rights to self-determination, autonomy and self-government, standards relating to Indigenous participation are expansive and strong. (UNWGIP 1993a, arts. 4, 19 and 20; IACHR 1997a, art. XV(2)) This is due to the recognition that Indigenous peoples will undoubtedly be affected by the larger policies and actions of the state despite their status as autonomous, self-governing entities. Free and informed consent is required by the UN Draft Declaration before states may enact or implement legislative, administrative or other measures that may affect Indigenous rights or interests. (UNWGIP 1993a, art. 20) In connection with this, Indigenous peoples have the right to determine their representatives in accordance with their own procedures.

Informed participation in decision-making processes concerning resource exploitation, especially sub-surface resources, is required. Article XVIII(5) of the Proposed OAS Declaration, which is modeled and improves on ILO 169, article 15(2), requires that states "must establish or maintain procedures for the participation of the peoples concerned in determining whether the interests of these peoples would be adversely affected and to what extent, before undertaking or authorizing" operations on Indigenous lands. It also requires that the affected peoples or communities share in any benefits and that compensation be rendered for damages sustained.

The UN Draft Declaration requires that states obtain Indigenous peoples’ "free and informed consent" prior to authorizing exploitation of Indigenous lands and territories. It states that

The principle contained in this article, especially the consent standard, is fundamental to ensuring the right of Indigenous peoples to cultural integrity.

The effect of these provisions is to establish procedural obstacles to proposed resource exploitation on Indigenous lands. Veto power and participation rights concerning resource exploitation are coupled with provisions safeguarding subsistence and other resources, territorial rights, broad political participation rights, environmental protection measures and autonomy and self-government, including authority over development decisions and resource management. The effect is, as one commentator has noted, that state sovereignty over natural resources is burdened and restricted by the rights and interests of Indigenous peoples. (Schrijver 1997)

The approach adopted by the respective instruments is consistent with the observations of the United Nations Centre for Transnational Corporations in a series of reports requested by the WGIP that examine the investments and activities of multinational corporations on Indigenous territories. The fourth and final report concluded that "TNCs’ performance was chiefly determined by the quantity and quality of indigenous peoples’ participation in decision making" and "the extent to which the laws of the host country gave indigenous peoples the right to withhold consent to development, and on the degree to which indigenous communities themselves were fully informed, and effectively organized for collective action." (UNCTC 1994, para. 20) With regard to land rights, the report concluded that "TNCs find it easier to involve indigenous peoples in decision-making when indigenous peoples’ rights to their lands are secure" and, in general, that "land rights are a necessary precondition for effective participation." (Ibid, para. 22) This report goes on to say that land rights alone are not sufficient for the purpose of participation, Indigenous Peoples also require all relevant information about the TNC, the industry in which it works and the specific project proposed if participation is to be truly effective. (Ibid)

As illustrated by the preceding discussion, Indigenous rights are receiving detailed and progressive treatment by intergovernmental human rights bodies. These standards are also having an impact upon interpretations of Indigenous rights under general human rights instruments. It is important to bear in mind, however, that Indigenous peoples have severely criticized ILO 169 (Venne, 1989), and have stated that they consider both the OAS Proposed and UN Draft Declarations to be statements of minimum rights. Consequently, as progressive as many of the standards discussed above may be within the larger context of international law, for many Indigenous peoples they do not adequately reflect the full extent of their rights and concerns.

The instruments adopted by the United Nations Conference on Environment and Development (UNCED) include a number of references to Indigenous peoples. These instruments also established bodies mandated to monitor state compliance with, or progress in achieving, their terms and objectives. As we shall see, the UNCED instruments deal with some of the same issues that are covered under the human rights instruments. Indeed, as illustrated by the IACHR’s reference to the Rio Declaration in the Ecuador Report, and the impact of ILO 169 and the UN Draft Declaration on Agenda 21 and other UNCED instruments, it would be accurate to say that in some ways the two are mutually reinforcing. In this regard, compare Principle 5(a) of the Statement of Principles of Forest Management adopted at UNCED with the standards detailed in the preceding sections. It states that

Both Agenda 21 and the Rio Declaration promote Indigenous participation. Principle 22 of the Rio Declaration states that

Chapter 26 of Agenda 21 is devoted entirely to Indigenous peoples. It contains two principal elements: objectives to be pursued, "in full partnership with indigenous people and their communities," and, activities to be undertaken with regard to Indigenous peoples. Chapter 26 also recognizes that the some of its goals are also addressed in both ILO 169 and the UN Draft Declaration (26.2).

Chapter 26 is focused on strengthening and facilitating Indigenous peoples’ participation in their own development and in external development activities that may affect them, and also on recognizing Indigenous peoples’ traditional knowledge of ecological management and sustainable development. This is to be accomplished by a variety of means including: greater political participation; calls for greater self-control over Indigenous lands and resources; recognition of traditional subsistence practices; and the strengthening of national legislation (26.3). Among the activities recommended are: the ratification of international instruments relevant to Indigenous peoples; action within the UN and international development agencies, including financial and technical support that incorporates the views of Indigenous peoples and their organizations in the implementation and design of policy and; the adoption or strengthening of policies to protect Indigenous peoples’ intellectual and cultural property. (26.4 and 26.5)

The Convention on Biological Diversity (CBD) is a binding international treaty, ratified by Guyana. Article 10(c) and (d) require that states-parties:

Although the precise scope and meaning of this article has yet to be officially articulated, it would most likely include Indigenous agriculture, agro-forestry, hunting, fishing, gathering and use of medicinal plants and other subsistence activities. This article, by implication, should also be read to include a certain measure of protection for the ecosystem and environment in which those resources are found. These observations on Article 10 (c) are supported by the analysis of the Secretariat of the Convention in its background paper on Traditional Knowledge and Biological Diversity. In that paper, the Secretariat said the following about the language "Protect and encourage" found in 10(c):

Concerning the phrase "Customary use of biological resources," the Secretariat stated that:

Article 8(j) of the CBD concerns Indigenous intellectual property rights – see, also, art. 29 and XX of the UN draft Declaration and the OAS Proposed Declaration, respectively, for provisions concerning Indigenous intellectual property rights. Article 8(j) reads that states shall

An explanation of the meaning of this article by the Secretariat of the CBD is provided in Annex III.

Article XI of the CARICOM Charter of Civil Society provides that

The States recognise the contribution of the indigenous peoples to the development process and undertake to continue to protect their historical rights and respect the culture and way of life of these peoples;

and in Article XXVII that "[t]he States declare their resolve to pay due regard to the provisions of this Charter." When read together, these articles commit Guyana to protect Indigenous peoples’ historic rights, which include, among others, rights to lands historically occupied and used and self-government, as well as to respect Indigenous peoples cultures, in all their manifestations, and ways of life. According to Article XXV, Guyana should have established a National Committee or other body that is competent to review perceived violations of the Charter.

The rights of Indigenous peoples are collective rights or rights that apply to the Indigenous people as a unit rather than the Indigenous individual to the exclusion of the collectivity. This is not to say that individual rights are not part of Indigenous rights in international law, they certainly are, but rather that Indigenous rights apply both to Indigenous peoples and Indigenous individuals. Collective rights have been described as "an inherent and essential element of indigenous rights." (UNWGIP 1988, para. 68). While human rights law has, with few exceptions (self-determination, the right to development, the prohibition of genocide, for instance), traditionally been concerned with the rights of individuals, international consensus has developed that human rights can also adhere to collectivities, particularly in the case of Indigenous peoples. Sanders defines collectivities as: "[g]roups that have goals that transcend the ending of discrimination against their members . . . for their members are joined together not simply by external discrimination but by an internal cohesiveness. Collectivities seek to protect and develop their own particular cultural characteristics." (Sanders 1991, 369) As evidenced by numerous statements from Indigenous peoples, cultural integrity and survival are paramount concerns. The importance of collective rights, therefore, is not only that they are "an inherent and essential element of indigenous rights," but that they also redefine the legal terms of Indigenous cultural survival and future development insofar as they represent the "legitimation and affirmation of the value of protecting indigenous peoples’ ways of life and cultures per se." (Williams 1990, 687)

The provisions of the 1982 Canada Constitution Act repeated here are not extensive. Consequently, a short explanation of their importance is required. First, it should be borne in mind that as in most other countries, the Constitution Act is the highest law of Canada and, therefore, any law that conflicts with the Constitution, at least to the extent that it is inconsistent with it, is voided (Constitution Act, Section 52(1)). The most relevant provision concerning Indigenous peoples states

There are two main points that we would like to make about Section 35 of the Canadian Constitution Act: 1) the recognition of aboriginal title (or as defined by the Brazilian Constitution "original rights") and treaty rights; and 2) the negotiation and constitutionalization of land claims settlements in Canada.

Like other "European settler" states (those States which are founded upon an immigrant population and the laws of the colonial power), Canada claimed ownership of all land within its borders on the basis of the international legal doctrine of discovery. This doctrine, which was created by Europeans to justify acquisition of colonies, basically states that a colonial power acquires sovereignty, underlying title to the land and the exclusive right against other colonial powers to confiscate or purchase Indigenous lands because it was the "discoverer". This is true despite the fact the Indigenous peoples had been self-governing, sovereign, owners of their land before "discovery" by a colonial power.

English common law, which became applicable in Canada from the moment of discovery,

holds that despite the vesting of underlying title to the land in the British crown or now the Canadian government, that Indigenous peoples maintain a legal interest in the land and the use of its resources. This was recognized by the Supreme Court of Canada in the 1973 Calder Case, which found that Indigenous peoples in Canada could claim communal title to their ancestral lands based upon, among others, historical occupation and use. Aboriginal title, or continuing rights to land and resources predating colonial intervention, has also be recognized in Aotearoa-New Zealand, the United States, Australia, other former-British colonies and in a modified form by certain Latin American countries (Brazil for instance speaks about Indigenous rights as "originary rights" or rights that are continuous with rights enjoyed prior to colonization).

Prompted by the recognition that the Supreme Court’s decision in the Calder Case would result in the Courts being overloaded with aboriginal title claims and uncertainty as to the precise content of aboriginal title rights, the Canadian government issued a statement saying that it was open to entering into formal negotiations with Indigenous peoples in order to settle outstanding land claims. As defined by the 1982 Constitution Act, Section 35(3), concluded and future land claims settlements are considered to be treaty rights for the purposes of the protections provided under Section 35(1). The reference to treaty rights beyond the context of land claims settlements refers to the treaties signed between Indigenous peoples and Canada in the second half of the 19th Century, by which Indigenous peoples agreed to exchange some of their land and other rights for guaranteed rights defined by treaty. Canada pursued this policy of treaty making as a way of freeing up land in Western, Central and Northern Canada for settlement by Europeans. These treaties extinguished or ended aboriginal title claims in the various treaty areas - in total there are eleven treaty areas in Canada.

Canadian government policy has divided land claims settlements into two categories:

According to the Canadian government, the purpose of land claims agreements is "to negotiate modern treaties which provide clear, certain and long lasting definition of rights to lands and resources. Negotiated comprehensive claims settlements provide for the exchange of undefined Aboriginal rights for a clearly defined package of rights and benefits codified in Constitutionally protected settlement agreements" (DIAND 1993, p.i).

Since the 1973 announcement of the land claims settlement policy, a number of claims settlements have been concluded. Of particular note are: James Bay and Northern Quebec Agreement (1975), the Northeastern Quebec Agreement 1975, the Inuvialuit Final Agreement (1994), the Gwich’in Comprehensive Land Claim Agreement (1992) and the Nunavut Land Claim Agreement (1993). Others are in the negotiation process. The government has also committed itself to negotiating separate self-government agreements that define the political rights and freedoms of Indigenous peoples.

The Nunavut Land Claim Agreement is especially interesting in part because in many ways it complies with or comes close to international standards, especially the UN draft Declaration. The text of the Agreement is too long to reproduce here, but we will attempt to describe it in outline. The negotiation of the Nunavut Agreement took 16 years (1976-1993). It has made the Inuit (Eskimos) of Northwest Canada the largest private landowners in North America and established a new political territory in which the Inuit are in the majority within the larger political framework of the Canadian state - Canada is divided into a number of provinces and territories each with their own governmental authorities and jurisdiction, with a weak federal or national government.

The Agreement itself can be divided into two main and overlapping categories of rights: 1) territorial and 2) self-determination. We will begin with territorial rights.

Under the Agreement, the Inuit ownership and use of their traditional lands is recognized. The area covered under the Agreement amounts to 2.2 million square kilometres of which the Inuit hold surface title to 350,000 square kilometres or 18%, subsurface title to 36,000 square kilometres or 2% and rights to rights to hunt and fish and do other traditional economic activities over the entire area, including the ocean and sea-ice. The Federal government of Canada will also pay the Inuit 1.1 billion Canadian dollars over 14 years in compensation for lost Inuit land and other rights (see, Article 27 of UN draft Declaration as it related to compensation). In exchange the Inuit agree to surrender all future claims to Indigenous lands or waters anywhere in Canada.

Full ownership rights to Inuit titled land may not be sold to anyone other than another Inuit organization or the Federal government. The restriction was included to ensure that the Inuit did not lose their lands or sell them off in times of financial hardship. With regard to the exploitation of mineral resources, it should not go unnoticed that the Canadian government maintained rights to over 98% of the subsurface of the area covered by the Agreement. However, in the 2% chosen by the Inuit contain over 80% of the areas known deposits of gold, diamonds, copper, silver, lead and zinc. Additionally, the Inuit will receive royalties on private and government mineral exploitation operations - 50% of the first 2 million of mineral exploitation royalties on rights held by the federal government of 5% thereafter.

The Agreement also established a system of land and resource management boards or councils that incorporate the full participation of the Inuit (4 members are Inuit, 4 from the government and 1 is independent acting in the public interest) in safeguarding land and resources for future generations. The boards must conduct all their hearing in the prevalent Inuit dialect used in the area. These boards, although in certain case subject to approval from relevant government departments at a minimum provide the Inuit with a substantial measure of participation in land use planning, environmental and wildlife management and resource exploitation. With regard to environmental damage the Inuit may hold developers and other liable for all environmental damage regardless of fault and require that just compensation be paid for all and any damages. Furthermore, Inuit religious and archeological sites must be protected and the Inuit may control what happens to archeological artifacts

We will now turn to the category of self-determination. Articles 3 and 31 of the UN draft Declaration recognize Indigenous peoples’ rights to self-determination, autonomy and self-government. These article do not, however, define the manner in which these rights are to be implemented allowing for flexibility to account for different circumstances and the freely chosen exercise of those rights by the peoples concerned. The Agreement states that a new political territory equal to other provinces and territories in Canada will be created and formally recognized in 1999. The Agreement and the political accord signed at the same time provide for the creation of an Implementation panel comprising two Inuit, one government and one territorial representative and the Nunavut Implementation Commission, which is responsible for laying groundwork for the formal recognition of the Nunavut territory. One of the responsibilities of the Implementation Commission is to oversee the administration of funds for training Inuit persons to assume positions of responsibility within the new territorial government and civil service.

The territorial government of Nunavut, which is to be elaborated with the full participation of the Inuit, is to have an elected body of representatives over which the Inuit by virtue of being over 80% of the population will control. This body, subject to overlapping federal government jurisdiction will be the primary law making and enforcing body in the territory. It will also be able to nominate representatives to participate directly in national level political discussions.

In conclusion, the Nunavut Agreement, although deficient in certain areas, does comply with some international standards contained in the UN draft Declaration and those contained in the OAS draft Declaration and ILO 169. For the purposes of this section on Constitutional law, it is important to note that the very general and minimal, at least as compared with some other Constitutions, especially in Latin America, provisions of the 1982 Constitution Act do incorporate and protect by reference many elements of Indigenous rights, at least insofar as they are recognized by Canadian law and to the extent that Canadian law complies with international standards. Both Aboriginal and treaty rights and land claims settlements as "modern treaties" and as defined by section 35(3) are protected by the Constitution.

That Indigenous rights are qualitatively and quantitatively distinct from minority rights has been widely accepted and incorporated into intergovernmental policy and action. The primary distinction involves the recognition of the collective rights of Indigenous peoples as a means to guarantee Indigenous cultural integrity and survival and to remedy historic and contemporary discrimination. The right to self-determination, which may take many forms depending upon the wishes of the people in question, is the framework within which Indigenous rights and aspirations take form. Subsumed within this larger principle are rights to give and withhold consent to activities, on whatever level, that may affect Indigenous rights and interests; the right to the full ownership and control of territory, which includes protection of the various modalities of Indigenous interaction with their lands and resources; recognition of Indigenous legal systems and institutions of governance and; in general, protection of all aspects of Indigenous cultural integrity, survival and future development.

The issue of territorial rights is fundamental to Indigenous rights. International standards, as well as domestic jurisprudence in common law jurisdictions, recognise that Indigenous rights are based upon a residual title that predates colonial intervention and, therefore, exist independent of a grant from the state. These rights are fundamentally related to rights to cultural integrity and survival. This relationship that Indigenous peoples have with their lands and resources has been recognised on numerous occasions by intergovernmental and non-governmental organisations as well as by many states. The 1981 UNESCO Declaration of San Jose on Ethno-Development and Ethnocide in Latin America, for instance, provides that "[f]or Indian peoples, the land is not only an object of possession and production. It forms the basis of their existence, both physical and spiritual, as an independent entity. Territorial space is the foundation and source of their relationship with the universe and the mainstay of their view of the world."

The World Council of Churches, which has been actively supporting Indigenous land rights since the early 1970’s, states that

Territorial rights include the right to consent to activities that may affect Indigenous rights, including extra-territorial activities and the right to autonomously make decisions concerning the use and management of Indigenous lands, including entry by non-members and protection of the environment.

As noted previously, states are obligated to implement ratified treaties through Constitutional, legislative and other means. While a certain degree of flexibility is permitted with regard to the modalities of implementation, measures adopted must be in conformity with both the terms and spirit of the treaties. Constitutions of other countries provide some guidance on this issue, however, the starting point for recognising Indigenous rights is first and foremost, the international standards enumerated above.

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1. In the practice of the Committee on the Elimination of Racial Discrimination, in particular in the

examination of reports of States parties under article 9 of the International Convention on the Elimination of All Forms of Racial Discrimination, the situation of indigenous peoples has always been a matter of close attention and concern. In this respect the Committee has consistently affirmed that discrimination against indigenous peoples falls under the scope of the Convention and that all appropriate means must be taken to combat and eliminate such discrimination.

2. The Committee, noting that the General Assembly proclaimed the International Decade of the World’s

Indigenous People commencing on 10 December 1994, reaffirms the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination apply to indigenous peoples.

3. The Committee is conscious of the fact that in many regions of the world indigenous peoples have been, and are still being, discriminated against, deprived of their human rights and fundamental freedoms and in particular that they have lost their land and resources to colonists, commercial companies and State

enterprises. Consequently the preservation of their culture and their historical identity has been and still

is jeopardized.

4. The Committee calls in particular upon States parties to: (a). recognize and respect indigenous distinct culture, history, language and way of life as an enrichment of the State’s cultural identity and to promote its preservation; (b). ensure that members of indigenous peoples are free and equal in dignity and rights and free from any discrimination, in particular that based on indigenous origin or identity; (c). provide indigenous peoples with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics; (d). ensure that members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent; (e). ensure that indigenous communities can exercise their rights to practice and revitalize their cultural traditions and customs, to preserve and to practice their languages.

5. The Committee especially calls upon States parties to recognise and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return these lands and territories. Only when this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories.

6. The Committee further calls upon States parties with indigenous peoples in their territories to include in their periodic reports full information on the situation of such peoples, taking into account all relevant

provisions of the Convention.

1. Article 27 of the Covenant provides that, in those States in which ethnic, religious or linguistic minorities exist, persons belonging to these minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. The Committee observes that this article establishes and recognizes a right which is conferred on individuals belonging to minority groups and which is distinct from, and additional to, all the other rights which, as individuals in common with everyone else, they are already entitled to enjoy under the Covenant.

2. In some communications submitted to the Committee under the Optional Protocol, the right protected under article 27 has been confused with the right of peoples to self-determination proclaimed in article 1 of the Covenant. Further, in reports submitted by States parties under article 40 of the Covenant, the obligations placed upon States parties under article 27 have sometimes been confused with their duty under article 2.1 to ensure the enjoyment of the rights guaranteed under the Covenant without discrimination and also with equality before the law and equal protection of the law under article 26.

3.1. The Covenant draws a distinction between the right to self-determination and the rights protected under article 27. The former is expressed to be a right belonging to peoples and is dealt with in a separate part (Part I) of the Covenant. Self-determination is not a right cognizable under the Optional Protocol. Article 27, on the other hand, relates to rights conferred on individuals as such and is included, like the articles relating to other personal rights conferred on individuals, in Part III of the Covenant and is cognizable under the Optional Protocol.

3.2. The enjoyment of the rights to which article 27 relates does not prejudice the sovereignty and territorial integrity of a State party. At the same time, one or other aspect of the rights of individuals protected under that article - for example, to enjoy a particular culture - may consist in a way of life which is closely associated with territory and use of its resources. This may particularly be true of members of indigenous communities constituting a minority.

4. The Covenant also distinguishes the rights protected under article 27 from the guarantees under articles 2.1 and 26. The entitlement, under article 2.1, to enjoy the rights under the Covenant without discrimination applies to all individuals within the territory or under the jurisdiction of the State whether or not those persons belong to a minority. In addition, there is a distinct right provided under article 26 for equality before the law, equal protection of the law, and non-discrimination in respect of rights granted and obligations imposed by the States. It governs the exercise of all rights, whether protected under the Covenant or not, which the State party confers by law on individuals within its territory or under its jurisdiction, irrespective of whether they belong to the minorities specified in article 27 or not. Some States parties who claim that they do not discriminate on grounds of ethnicity, language or religion, wrongly contend, on that basis alone, that they have no minorities.

5.1. The terms used in article 27 indicate that the persons designed to be protected are those who belong to a group and who share in common a culture, a religion and/or a language. Those terms also indicate that the individuals designed to be protected need not be citizens of the State party. In this regard, the obligations deriving from article 2.1 are also relevant, since a State party is required under that article to ensure that the rights protected under the Covenant are available to all individuals within its territory and subject to its jurisdiction, except rights which are expressly made to apply to citizens, for example, political rights under article 25. A State party may not, therefore, restrict the rights under article 27 to its citizens alone.

5.2. Article 27 confers rights on persons belonging to minorities which "exist" in a State party. Given the nature and scope of the rights envisaged under that article, it is not relevant to determine the degree of permanence that the term "exist" connotes. Those rights simply are that individuals belonging to those minorities should not be denied the right, in community with members of their group, to enjoy their own culture, to practise their religion and speak their language. Just as they need not be nationals or citizens, they need not be permanent residents. Thus, migrant workers or even visitors in a State party constituting such minorities are entitled not to be denied the exercise of those rights. As any other individual in the territory of the State party, they would, also for this purpose, have the general rights, for example, to freedom of association, of assembly, and of expression. The existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria.

5.3. The right of individuals belonging to a linguistic minority to use their language among themselves, in private or in public, is distinct from other language rights protected under the Covenant. In particular, it should be distinguished from the general right to freedom of expression protected under article 19. The latter right is available to all persons, irrespective of whether they belong to minorities or not. Further, the right protected under article 27 should be distinguished from the particular right which article 14.3 (f) of the Covenant confers on accused persons to interpretation where they cannot understand or speak the language used in the courts. Article 14.3 (f) does not, in any other circumstances, confer on accused persons the right to use or speak the language of their choice in court proceedings.

6.1. Although article 27 is expressed in negative terms, that article, nevertheless, does recognize the existence of a "right" and requires that it shall not be denied. Consequently, a State party is under an obligation to ensure that the existence and the exercise of this right are protected against their denial or violation. Positive measures of protection are, therefore, required not only against the acts of the State party itself, whether through its legislative, judicial or administrative authorities, but also against the acts of other persons within the State party.

6.2. Although the rights protected under article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion. Accordingly, positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practise their religion, in community with the other members of the group. In this connection, it has to be observed that such positive measures must respect the provisions of articles 2.1 and 26 of the Covenant both as regards the treatment between different minorities and the treatment between the persons belonging to them and the remaining part of the population. However, as long as those measures are aimed at correcting conditions which prevent or impair the enjoyment of the rights guaranteed under article 27, they may constitute a legitimate differentiation under the Covenant, provided that they are based on reasonable and objective criteria.

7. With regard to the exercise of the cultural rights protected under article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.

8. The Committee observes that none of the rights protected under article 27 of the Covenant may be legitimately exercised in a manner or to an extent inconsistent with the other provisions of the Covenant.

9. The Committee concludes that article 27 relates to rights whose protection imposes specific obligations on States parties. The protection of these rights is directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole. Accordingly, the Committee observes that these rights must be protected as such and should not be confused with other personal rights conferred on one and all under the Covenant. States parties, therefore, have an obligation to ensure that the exercise of these rights is fully protected and they should indicate in their reports the measures they have adopted to this end.

In 1997, the Committee on the Elimination of Racial Discrimination stated that

When questioning Guyana’s representative on its report concerning implementation of the International Covenant on Economic, Social and Cultural Rights, Committee members had the following to say