Indigenous Peoples and Self-Determination a Legal Analysis of International Documents with Special Regard to Canadian Legislation

Indigenous peoples and self-determination A legal analysis of international documents with special regard to Canadian legislation

Diplomarbeit

zur Erlangung des akademischen Grades einer Magistra der Rechtswissenschaften an der Rechtswissenschaftlichen Fakultät

eingereicht von Christina Eixelsberger

bei Univ.-Prof. Dr. Wolfgang Benedek Institut für Völkerrecht und internationale Beziehungen

2012 Eidesstattliche Erklärung

Ich erkläre an Eides statt, dass ich die vorliegende Arbeit selbstständig verfasst, andere als die angegebenen Quellen/Hilfsmittel nicht benutzt, und die den benutzten Quellen wörtlich und inhaltlich entnommene Stellen als solche kenntlich gemacht habe.

Graz, am ……………… …………………………………. (Unterschrift)

Statutory declaration

I declare that I have authored this thesis independently, that I have not used other than the declared sources / resources, and that I have explicitly marked all material which has been quoted either literally or by content from the used sources.

……………………… ………………………………….. date (signature)

Acknowledgment

First and foremost, I would like to thank Univ.-Prof. Dr. Wolfgang Benedek for the supervi- sion of my work as well as Dr. Doris Farget from the University of Montréal for her advice concerning available material and for drawing my attention to the situation of Nunavut. Moreover I owe my gratitude to Mag. Agnes Paier and Zura Simonishvili, who were so kind as to proof-read my work, for their critical comments and for their willingness to deal with this subject. The same holds true for Nina Lucy Smith, whose help with all linguistic questions I highly appreciate. Special thanks are due to my family for their support and patience during the whole time of my studies and for enabling me to go to Canada. To them I am truly grateful for helping me whenever they could.

III

Table of contents

List of abbreviations ...... VIII

Introduction ...... 1

I. Remarks on indigenous peoples ...... 4

A. Concepts and their delineations: Peoples v. indigenous peoples v. minorities ...... 4

1. Peoples ...... 4

2. Indigenous peoples ...... 6

3. Minorities ...... 8

4. Comparison of the concepts ...... 10

B. The evolution of Canadian aboriginal peoples’ status from a legal perspective ...... 10

1. Historical introduction: colonialism, sovereignty and the Royal Proclamation ...... 10

2. The status of indigenous peoples as lay down by the law ...... 11

3. Bilateral agreements with indigenous peoples: the numbered treaties signed with the Kingdom ...... 13

4. Ancestral rights and the aboriginal title: realization of self-determination over a territory ...... 15

a. Constitutional protection ...... 15

b. Recognition in common law ...... 16

II. The right to self-determination ...... 18

A. Historical background ...... 18

B. The character of the right to self-determination ...... 19

1. Internal and external self-determination ...... 19

2. Substantive and remedial aspects of self-determination ...... 20

3. The minimalist and maximalist approach to self-determination ...... 21

4. Elements of self-determination ...... 22

a. Cultural identity ...... 22

b. Control of natural resources ...... 22

c. Self-government or autonomy ...... 23

d. Nondiscrimination ...... 24

e. The idea of a third order of government ...... 24

C. Secession as the result of the exercise of the right to self-determination? ...... 25

1. The case of the secession of Quebec before the SCC ...... 25

2. The ICJ’s advisory opinion on Kosovo's declaration of independence ...... 28

D. Defining “peoples“ in international law: a year-long struggle ...... 30

III. The right to self-determination of indigenous peoples in international and regional law ...... 34

A. Indigenous peoples as subjects of international law ...... 34

1. Historical background: going from sovereign to dependant and back ...... 34

2. Improvement and struggles in the 20th century ...... 35

B. Indigenous peoples’ rights in the UN system ...... 37

1. The International Covenant on Civil and Political Rights ...... 37

a. The Optional Protocol to the International Covenant on Civil and Political Rights . 39

b. Monitoring mechanisms ...... 40

c. Comment ...... 41

2. The use of the right to self-determination in the jurisprudence of the ICJ ...... 41

a. The case concerning East Timor (Portugal v. Australia) ...... 42

b. The case concerning Western Sahara ...... 43

3. The HCR and claims for self-determination in practice: The case of Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada ...... 44

4. The UN Declaration on the Rights on Indigenous Peoples ...... 46

a. Historical background ...... 46

aa. The Work of the WGIP ...... 46

ab. The Work of the CDWG ...... 48

b. Concept, ironies and application ...... 48

c. Art. 3 articulating the right to self-determination ...... 52

d. Monitoring mechanisms ...... 56

e. Comment ...... 57

f. Canada’s position towards the Declaration ...... 58

C. ILO Conventions 107 and 169 ...... 60

1. Convention 107 ...... 61

2. Convention 169 ...... 62

3. Monitoring mechanisms ...... 65

4. Comment ...... 66

D. International regional protection of indigenous peoples’ rights ...... 67

1. The OAS and the ADRIP ...... 67

2. Monitoring mechanisms ...... 70

3. The work of the Inter-American Commission on Human Rights ...... 71

a. The Report on the situation of human rights of a segment of the Nicaraguan population of Miskito origin ...... 71

b. The case of Saramaka v. Suriname ...... 72

E. Excursus: Customary international law ...... 74

F. Tables of comparison ...... 76

1. Positive and negative aspects of the ICCPR, the UNDRIP, ILO Convention 169 and the Draft American Declaration on the Rights of Indigenous Peoples ...... 76

2. Differences between the ICCPR, the UNDRIP, ILO Convention 169and the Draft American Declaration on the Rights of Indigenous Peoples ...... 79

IV. The situation of the Amerindians within Canadian legislation ...... 81

A. Legislative powers for aboriginal issues ...... 81

B. Indigenous Identities: terminology to define the indigenous populations of Canada ...... 82

1. Indians, Inuit and Métis ...... 82

2. Treaty Indian v. Non-Treaty Indian v. Non-Status Indian ...... 83

C. Provisions applicable to Canadian aboriginal peoples ...... 84

1. The Indian Act ...... 85

2. The Constitution Act 1982 ...... 85

3. The Canadian Charter of Rights and Freedoms ...... 86

4. Other laws ensuring certain aspects of self-determination ...... 86

D. Self-government in practice: Nunavut ...... 87

1. Introduction to Nunavut and the making of the NCLA ...... 87

2. Self-government as a result of the NCLA ...... 89

V. Conclusions and outlook ...... 91

VI. Bibliography ...... 94

A. Doctrine ...... 94

B. Cases ...... 97

C. Documents ...... 98

D. Websites ...... 101

VII

List of abbreviations

ADRIP American Declaration on the Rights of Indigenous Peoples Art. Article C Convention c. Chapter C.A. Constitution Act C.C.C. Canadian Criminal Cases CAD Canadian Dollar CAS Committee on the Application of Standards CDWG Working Group of the Commission CEACR Committee of Experts on the Application of Conventions and Recommendations cf. Confer Doc. Document eds. Editors et al. et alii (lat.: and others) GA General Assembly HCR Human Rights Committee I.A. Indian Act IACHR Inter-American Commission of Human Rights Ibid. ibidem (lat.: in the same place; referring to the immediately preceding note) ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice ILO International Labour Organization IQ Inuit Qaujimajatuqangit ITC Inuit Tapirisat of Canada L.R.Q. Lois Refondues du Québec NCLA Nunavut Land Claims Agreement NGO Non-Governmental Organization NWT North Western Territories

VIII

OAS Organization of American States OP Optional Protocol p. Page para. Paragraph R. Regina (lat.: Queen) R.S.C. Revised Statutes of Canada (1985 is most recent) Res./RES. Resolution S.C.R. Supreme Court Reports S.C. Statutes of Canada SC Security Council SCC Supreme Court of Canada TFN Tungavik Federation of Nunavut UNDRIP United Nations Declaration on the Rights of Indigenous Peoples UNESCO United Nations Educational, Scientific and Cultural Organization UNMIK United Nations Interim Administration Mission in Kosovo v. Versus Vol. Volume WGIP Working Group on Indigenous Populations

Introduction

“We, the Indigenous Peoples, walk to the future in the footprints of our ancestors. From the smallest to the largest living being, from the four directions, from the air, the land and the mountains. The creator has placed us. The Indigenous peoples upon our Mother the earth. The footprints of our ancestors are permanently etched upon the lands of our peoples. We, the Indigenous peoples, maintain our inherent rights to self-determination. We have always had the right to decide our own forms of government, to use our own laws, to raise and educate our children, to our own cultural identity without interference.”

 Kari-Oca Declaration, signed in Brazil on May 30, 1992

Native, Indian, Aboriginalthere are many words to describe indigenous peoples. A long time ago, what we know today as indigenous peoples inhabited large parts of the world. Today, they are a minority. For centuries they had had the possibility to make their own decisions and to live a life based upon their own values and ideals. They had had ways to govern their groups and a relationship with the territory they lived on. Not much of that is left today. After the contact with the Europeans they were forced to accept concepts and a culture that were unfamiliar to them. Indigenous peoples had had ways of solving disputes and their own form of law, and none of that included written treaties or trials. Nevertheless, when first attempts were made to defend their rights after years of assimilation, they were forced to use our legal system to make claims. From this point follows also the importance of the right to self- determination for indigenous peoples. They are more than minorities but generally considered to be less than “peoples” - they are groups without clear legal status, obliged to obey rules they had not created. Granting indigenous peoples the right to self-determination means giving them the possibility of breaking free from subjugation, which today may no longer exist, de facto, but does exits legally.

The aim of this work can be summarized in one statement: to understand in which way the right to self-determination is protected for indigenous peoples and to find out whether this way is effective. Therefore, several questions arise inevitably. First of all, it has to be clarified what exactly self-determination is. Self-determination is a legal and social concept and thus there exist different ways of interpreting it. Self-determination is also a human right, which makes it important to know how exactly this human right is protected in general and for indigenous peoples in particular. What is the position of international law on this subject? Also, what are the

Introduction different documents dealing with the rights of indigenous peoples and more specifically, with the right to self-determination? Moreover, it should be discussed how this right is realized on the international, regional and national level and whether there are differences. If differences occur, to what extent do they occur and why? When describing legal documents, strong and weak points have to be identified. Apart from that, it is interesting to see how the right to self- determination is dealt with by different tribunals. All of these points shall be discussed in this work in order to get the complete picture of the indigenous peoples’ right to self-determination. All these questions help to understand the importance of this right for indigenous peoples and the fact that they are all linked to each other.

This work is divided into five parts. Part one deals with the concept of indigenous peoples and their history, which will be illus- trated by Canadian aboriginal peoples. In general, the whole work will have a strong focus on Canada. The explanation of government positions, court decisions and the realization of self- determination on national level on the basis of one country only is more comprehensive than mentioning some bits and pieces from every country with a relevant percentage of indigenous peoples. In part one, the concepts of “peoples”, “indigenous peoples” and “minorities” will be distinguished and explained. Furthermore, this section will help understand what makes indigenous peoples so special that they deserve a distinct legal status.

The second part deals with the right of self-determination in general. As briefly mentioned, self-determination has many facets. Therefore, the ideas of internal and external self- determination will be elaborated as well as the minimalist/maximalist approach and the distinction into substantive and remedial self-determination. Moreover, the different elements that help the realization of self-determination will be expounded. At the end of this chapter, the possibility to secede as an exercise of self-determination will be outlined. For this purpose, two court decisions, one concerning the secession of Quebec and the other one concerning the unilateral declaration of independence of Kosovo, will serve as examples.

Part three is the main body of the work. Here, the relevant international documents will be analyzed and described in detail. Along with that, decisions of courts and supervisory bodies will illustrate the effectiveness of the instruments in practice. This section is divided into three subparts. The first one will deal with the indigenous people’s status within the UN system;

Introduction here the International Covenant on Civil and Political Rights and the United Nations Declara- tion on the Rights of Indigenous Peoples will be discussed. The following section will rather briefly explain the protection of indigenous people’s rights by the International Labour Or- ganization. The last subpart focuses its attention the protection of the right to self- determination on the international regional level. Here I opted for the protection granted by the Organization of American States, on the one hand, because of Canada’s membership, and on the other, because with the American Declaration on the Rights of Indigenous Peoples another instrument for the protection of indigenous peoples’ rights is created. Additionally, the four main international documents will be compared and the positive and negative aspects of each of them will be analyzed as well.

The fourth part will illustrate the right to self-determination and the protection of indigenous people’s rights that serve as realizations of self-determination on national level, primarily in Canadian legislation. In this section, one part will focus on self-determination in practice highlighted by the example of the Inuit of Nunavut.

Part five then will contain the conclusion of this work and the answers to the questions above.

I. Remarks on indigenous peoples

A. Concepts and their delineations: Peoples v. indigenous peoples v. minorities

With regard to indigenous peoples and their status in international law, several terms have to be distinguished whose differences are often not very clear due to the rather fluid borders between the concepts.

1. Peoples As will be seen later in this work, international law is sometimes very cautious when it comes to definitions. Thus, it has to be noted that there is neither a universally applicable definition of “peoples” nor agreement on the meaning of the term among the world community. Howev- er, over the years, scholars have developed different theories in order to describe the term “peoples” and to allow to understand who belongs to this group. Already as early as in 1981, Aureliu Cristescu1 carried out a study on the right to self-determination2 based on the United Nations instruments existing at that time. In this study, apart from discussing the instruments as well as the nature of the right to self-determination and its content, he tried to furnish an explanation as to who benefits from the right and also subsequently described the characteristics of a “people”: “(a) The term ‘people’ denotes a social entity possessing a clear identity and its own characteristics; (b) It implies a relationship with a territory, even if the people in question has been wrongfully expelled from it and artificially replaced by another population; (c) A people should not be confused with ethnic, religious or linguistic minorities, whose existence and rights are recognized in article 27 of the International Covenant on Civil and Political Rights.”3 With regard to these criteria it seems logical that indigenous peoples would fall within the scope of the definition: they clearly possess their own identity and characteristics and usually do have a relationship with a territory that might be even more intensive than that of non- aboriginal peoples. As will be discussed, indigenous peoples can be minorities as well but do not necessarily have to be. Nevertheless, as numerous debates on the applicability of interna-

1 Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities. 2 Aureliu Cristescu: The Right To Self-Determination Historical And Current Development on The Basis Of United Nations Instruments, Study from 1981 (United Nations Publications E.80.XIV.3, New York). 3 Ibid., para. 279. 4

I. Remarks on indigenous peoples tional norms designated to “peoples” on indigenous peoples have proven, indigenous peoples do not seem to be included in this definition. Another widely used description (and not definition, as it is explicitly stated) of “peoples” is the one proposed by Michael Kirby, an Australian judge, at the UNESCO Meeting of Experts in 1989: “1. a group of individual human beings who enjoy some or all of the following common features: a. a common historical tradition; b. racial or ethnic identity; c. cultural homogeneity; d. linguistic unity; e. religious or ideological affinity; f. territorial connection; g. common economic life; 2. the group must be of a certain number which need not be large but which must be more than a mere association of individuals within a State; 3. the group as a whole must have the will to be identified as a people or the consciousness of being a people – allowing that group or some members of such groups, though sharing the foregoing characteristics, may not have that will or consciousness; and possibly; 4. the group must have institutions or other means of expressing its common characteristics and will for identity.” 4 Considering this description, indigenous peoples would rather easily satisfy criteria one, three and four. However, criterion two could raise a problem as even though aboriginal peoples generally are more than an association of individuals, it might remain unclear whether they constitute a group “of a certain number”. In this connection Scheinin, Åhrén and Henriksen state that “the only real difference is that the concept of indigenous peoples includes a relationship to another, dominant group”.5 It should be left open whether it is fair to bar them from being “peoples” according to this concept just because, even if they fulfill all conditions, they are not the dominant group within a state.

4 Final Report and Recommendations: International Meeting of Experts on further study on the concept of peoples, 27-30 November 1989, Paris (UNESCO Document SHS-89/CONF.602/7), para. 22. 5 Åhrén Mattias/Henriksen John B./Scheinin Martin, The Nordic Sami Convention: International Human Rights, Self-determination and other Central Provisions in: Gáldu Čála, Journal of Indigenous Peoples, Vol. 3 (2007), p. 65. 5

I. Remarks on indigenous peoples

2. Indigenous peoples Apart from the fact that indigenous peoples could more or less fall within the scope of the definitions of “peoples”, several enumerations of elements that make up aboriginal peoples have been developed over the years. However, the idea of an own description is an invention of modern history. For example in 1989, during an UN seminar on the effects of racial discrimination, a commentator even referred to the existence of the term “indigenous peoples” as an “accident of history”.6 The most common among the large number of descriptions is the so-called Cobo-Definition7: “Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.”8 Here, the emphasis on historical continuity, which usually distinguishes indigenous peoples from minorities, should be underlined. This element is further defined in the Cobo-Study and may arise from the continuation (that is an extended period reaching into the present) of one of the following factors: “(a) Occupation of ancestral lands, or at least of part of them; (b) Common ancestry with the original occupants of these lands; (c) Culture in general, or in specific manifestations (such as religion, living under a tribal system, membership of an indigenous community, dress, means of livelihood, life- style, etc); (d) Language (whether used as the only language, as mother-tongue, as the habitual means of communication at home or in the family, or as the main, preferred, habitual, general or normal language);

6Cf. Report on the United Nations Seminar on the effects of racism and racial discrimination on the social and economic relations between indigenous peoples and States, 16-20 January 1989, Geneva (UN Doc. E/CN.4/1989/22) p. 25.; Nevertheless it already seemed clear that there was a difference between “peoples” and “indigenous peoples”: "They are descendants of a people which lived in the region prior to the arrival of settlers coming in from the outside, settlers who have since become the dominant population.” 7 Named after José R. Martinez Cobo. 8 Martinez Cobo José R., Study of the problem of discrimination against indigenous peoples. Volume V, Conclu- sions, Proposals and Recommendations Study (UN Doc. E/CN.4/Sub.2/1986/7/Add.4), para. 379. (Cobo-Study) 6

I. Remarks on indigenous peoples

(e) Residence in certain parts of the country, or in certain regions of the world.”9 The World Bank adopted a similar definition in one of its operational directives10 which identifies indigenous peoples as living in particular geographical areas and lists several characteristics, among them too the attachment to ancestral territories.11 Nevertheless, these are just proposals as the directive explicitly points out that no definition can capture the indigenous peoples’ entire diversity. Cobo justifies his description mainly with the fact that indigenous peoples generally consider themselves to be distinct from the rest of the population of a state as they feel to be the suc- cessors of those who originally inhabited the land.12 This is one important factor that summa- rizes well what makes indigenous peoples so special and what will always distinguish them from minorities or the other citizens of a state: they were there before whoever invaded their land later on. Cobo highlights one more element which can also be found in the World Bank’s directive: indigenous people want to keep their territory.13 Since time immemorial, territory has had a special meaning to aboriginal peoples. It had been their basis for living and up until now their perception of the relationship one should have with the land differs largely from that of the understanding of Europeans or Americans. This viewpoint has also been expressed by different representatives of indigenous peoples during their participation in the standard setting process within the UN System. For example, the Aboriginal and Torres Strait Islander Social Justice Commissioner, Mr. M. Dodson, stated: “[…] Above all and of crucial and fundamental importance is the historical and ancient connection with lands and territories.”14 In 1996, the Chairperson of the UN Working Group on Indigenous Peoples, Erica-Irene Daes, herself summarized relevant factors in order to establish a working definition of indigenous peoples: “(a) Priority in time, with respect to the occupation and use of a specific territory;

9 Ibid., para. 380. 10 World Bank, Operational Directive 4.20, September 1991. 11 Art. 5: Indigenous peoples can be identified in particular geographical areas by the presence in varying de- grees of the following characteristics: (a) a close attachment to ancestral territories and to the natural resources in these areas; (b) self-identification and identification by others as members of a distinct cultural group; (c) an indigenous language, often different from the national language; (d) presence of customary social and political institutions; and (e) primarily subsistence-oriented production. 12 Cf. Cobo-Study, para. 376. 13 Cf. Ibid., para. 377. 14 Cited after: Standard-Setting Activities: Evolution Of Standards Concerning The Rights Of Indigenous People: Working Paper by the Chairperson-Rapporteur, Mrs. Erica-Irene A. Daes, on the concept of "indigenous people" (UN Doc. E/CN.4/Sub.2/AC.4/1996/2), para. 35. 7

I. Remarks on indigenous peoples

(b) The voluntary perpetuation of cultural distinctiveness, which may include the aspects of language, social organization, religion and spiritual values, modes of production, laws and institutions; (c) Self-identification, as well as recognition by other groups, or by State authorities, as a distinct collectivity; and (d) An experience of subjugation, marginalization, dispossession, exclusion or discrimination, whether or not these conditions persist.”15 She also underlines the two main elements that make up an indigenous people: priority in time and the use of a specific territory. For indigenous peoples, the collective dimension of territory is more relevant. They own, occupy and use land as a community and the idea of individual ownership or property is unfamiliar to them. These communities maintain special historical and spiritual links with their lands that non-indigenous persons often do not understand.16 For example, for aboriginal peoples in Australia, the whole country is crossed by song-lines. These lines were laid by their ancestors and owning a territory means owning a part between the song-lines. Song-lines are frontiers as well as laws that explain the creation of land. Their relationship with the land they inhabit is one crucial element that makes up an indigenous people and as these perceptions are often ignored by national legislation, self- determination is even more important in giving them the possibility to preserve their cultures and traditions.

The definitions and descriptions discussed above are only the most relevant as provided in international documents. Those emerging from legal instruments such as the ILO Conventions are subject to other chapters within this work. However, it should be pointed out that the doctrine did not leave the issue unnoted either, and most of the authors also emphasize on the historical criterion on the one hand and the territorial on the other.17

3. Minorities Minorities are the third concept in this context and, as with the other two, the term is ambiguous and no clear definition exists. Worth noting are two proposed descriptions that developed

15 Ibid., para. 69. 16 Cf. Stavenhagen Rodolfo, Indigenous Peoples: Land, Territory, Autonomy, and Self-Determination in Rosset Peter/Patel Raj/ Courville Michael (eds.), Promised land: competing visions of agrarian reform, New York, 2006, p. 211. 17 A summary can be found in: Farget Doris, Le droit au respect des modes de vie minoritaires et autochtones dans les contentieux internationaux des droits de l’homme, Montréal Marseille, 2010, p. 99-106.; for more information on the link with the territory see: Otis Ghislain, Territorialité, personnalité et gouvernance autochtone in: Les Cahiers de droit, Vol. 47 (2006). 8

I. Remarks on indigenous peoples within the frame of the former Working Group on Minorities. The first one dates from 1985 and was proposed by Jules Dêchenes: “A group of citizens of a State, constituting a numerical minority and in a nondominant position in that State, endowed with ethnic, religious or linguistic characteristics which differs from those of the majority of the population, having a sense of solidarity with one another, motivated, if only implicitly, by a collective will to survive, and whose aim it is to achieve equality with the majority in fact and in Law.”18 Thus, constitutive elements are a numerical minority in a nondominant position that share ethnic, religious or linguistic characteristics and feel that they belong to a distinct group. The second one emerged some years later within the work of Francesco Capotorti: “A group numerically smaller to the rest of the population of the State, in a nondominant position, whose members, being nationals of the State, possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.”19 He nearly uses the same elements as Dêchenes but adds the nationality of the state they inhabit as a factor.20

The Canadian political philosopher Will Kymlicka, on the other hand, favors the viewpoint that indigenous peoples are part of what he calls “national minorities”.21 For him, national minorities are groups that live for centuries on a territory that they regard as their homeland. This concept is all-embracing and includes, for example, the Inuit as well as the Québécois. Groups, such as the latter, are then considered as “stateless nations”22 who differ from indige-

18 In UN Doc. E/CN.4/Sub.2/1985/31 cited after Citizenship And The Minority Rights Of Non-Citizens: Work- ing paper submitted by Asbjorn Eide (UN Doc. E/CN.4/Sub.2/AC.5/1999/WP.3), p. 2. 19 In Francesco Capotorti, Study of the Rights of Persons belonging to Ethnic, Religious or Linguistic Minorities (United Nations, New York) 1991, para. 568 cited after: Ibid., p. 3. 20 An analysis of the Capotorti-Defintion can be found in: Woehrling José, Les trois dimensions de la protection des minorités en droit constitutionnel comparé in: Revue de Droit, Université de Sherbrooke, Vol. 34 (2003- 2004). 21 For information as to why aboriginal peoples should not be considered as minorities, see: Spaulding Richard, Peoples As National Minorities:A Review Of Will Kymlicka's Arguments For Aboriginal Rights From A Self- Determination Perspective in: University of Toronto Law Journal, Vol. 47 (1997). 22 Cf. Kymlicka Will, Theorizing Indigenous Rights in: University of Torono Law Journal, Vol. 49 (1999), p. 3. “There is no universally agreed criteria for distinguishing indigenous peoples from stateless nations, but one criteria concerns the role these groups played in the process of state formation. As a rule, stateless nations were contenders but losers in the process of European state formation, whereas indigenous peoples were entirely isolated from that process until very recently, and so retained a pre-modern way of life until well into this century. Stateless nations would have liked to form their own states, but lost in the struggle for political power, whereas indigenous peoples existed outside this system of European states. The Catalans, Puerto Ricans, Flem- ish, Scots and Quebecois, then, are stateless nations, whereas the Sami, Inuit and American Indians are indigenous peoples.” 9

I. Remarks on indigenous peoples nous peoples because they participated in the state formation process whilst aboriginal peoples didn’t.

4. Comparison of the concepts As can be seen the definitions of the terms “peoples”, “indigenous peoples” and “minorities” are fluent. As already stated indigenous peoples differ from other peoples mainly through their numerical inferiority. They would fulfill the conditions of the working definitions of “peoples” but are not the dominant group within a state. This factor would normally make them a minority but what keeps them from being one is the link to their ancestral territories. Minorities are not native peoples that arose from the place where they live now; instead, for one reason or another, they live within a state with another dominant national group. In general (with some exceptions) there exists another state where the group that is considered to be a minority in the other state is the dominant group. When it comes to the nature of the rights conferred upon minorities and indigenous peoples another difference can be found. Minority rights are generally individual rights, whereas indigenous peoples’ rights are designated to be collective rights (even if some of them can be enjoyed by individuals too). Minority rights aim to facilitate the maintenance and development of the specific identity of the individuals of the minority whereas rights of indigenous peoples tend to facilitate the maintenance and development of their special society apart from the minority community. Rights of minorities aim to enable effective participation within the political system of a state, whilst rights of indigenous peoples aim to enable them to make their own decisions.23

B. The evolution of Canadian aboriginal peoples’ status from a legal perspective

1. Historical introduction: colonialism, sovereignty and the Royal Proclamation When Europeans first arrived in what later became Canada, indigenous peoples had inhabited the territory for centuries. The ancestors of today’s aboriginal peoples can be divided into two categories: the Algonquins and the Iroquois. The first group, which comprises, for example, the Innus, the Crees, the Micmacs or the Naskapis, was considered as semi-nomadic living mainly from hunting and fishing. The second is made up of the so-called Haudenosaunees and the Wendats. Apart from hunting, they cultivated land to survive.24

23 Cf. Åhrén /Henriksen/Scheinin, The Nordic Sami Convention, (2007), p. 63f. 24 Cf. Morin Michel, L’usurpation de la souveraineté autochtone. Le cas des peuples de la Nouvelle-France et des colonies anglaises de l’Amérique du Nord, Québec, 1997, p. 20. 10

I. Remarks on indigenous peoples

Following the arrival of French and British settlers during the 16th century, the relationship between the indigenous peoples and the Europeans was not yet marked by the idea of inferiority that was later developed towards indigenous peoples. As the settlers arrived on a new land with a different climate and nature, they depended on the aboriginal peoples to survive. Thus, at the beginning, they formed alliances with them in order to facilitate the exploration and exploitation of the territory. Moreover, a trading relationship developed and later on, aboriginal peoples became military allies. For that purpose treaties were signed (for example the Great Peace of Montréal of 1701) which shows that during the 16th and 17th century, indigenous peoples were regarded as equal nations having the power to sign and conclude treaties. In the second half of the 18th century the area of New France was conquered by Great Britain and to subjugate the indigenous peoples several treaties were signed in order to cede aboriginal territories to the Crown. An important legal document of that time was the Royal Procla- mation of 1763 whose object was to stabilize the new empire and to organize the relationship with the indigenous peoples. The Proclamation continued the purchase of land by the Crown but left some parts of the territory to their original owners: “And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Pos- session of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds.”25 Moreover, the fiduciary obligation of the Crown has its origin in the Royal Proclamation. From 1815 onwards, the indigenous peoples were considered to be a “problem” as they pre- vented the British expansion on the newly discovered territory. Alliances with them came to an end and international scholars started to deny indigenous sovereignty. Colonialism in- creased and the former nomadic tribes were forced to become increasingly sedentary.

2. The status of indigenous peoples as lay down by the law In 1867 the Constitution Act was adopted and made “Indians” a competence of the federal government. Nine years later the first Indian Act was born. In its French version the law was called Acte des sauvages and only later became the Loi sur les Indiens which shows very well the attitude towards indigenous peoples at that time who were considered to be “savage”. The purpose of the Indian Act of 1876 was to assimilate the Amerindians (aboriginal peoples) and to convert them to Christianity. Moreover, the law organized the possession of territory and

25 The Royal Proclamation of 1763 by King George III, para. 1. 11

I. Remarks on indigenous peoples determined who had the right to be considered as “Indian”. With regard to the latter it was trying to reduce the number of “Indians” on Canadian territory and therefore someone who became, for example, a lawyer or doctor lost his status as an “Indian”. During this time indigenous peoples lost more and more of their sovereignty. This can also be seen in the decision R. v. Picard26 which illustrates to what extent indigenous peoples were infantilized. In this case a man was arrested for having sold alcohol to an Indian, at that time forbidden by law. Thus, members of an indigenous people no longer had the right to decide on their own whether to drink alcohol or not, but the government decided instead. Another important court decision of that time is the case of St. Catherine’s Milling27 from 1888. It deals with the question of indigenous sovereignty prior to the signature of the numer- ated treaties. The case involved Treaty No. 3 and is a leading decision concerning property rights under the constitution, even though it did not directly involve indigenous peoples. At stake was a dispute between Ontario and the federal government. The latter had given permis- sion to the St. Catherine’s Company to use a certain territory but Ontario did not accept this, arguing that the province itself was the legal owner of the territory in question and thus the Crown had no right to give it away. To solve this conflict, the Court analyzed the situation prior to the signature of Treaty No. 3 and the way how the cession between the Crown and the indigenous peoples had taken place. The Crown underlined that before the cession, the indigenous peoples had had property of the territory and thus legally sold it to the Crown. On the other hand, Ontario expressed the opinion that the aboriginal peoples could never have been in possession of the territory due to the lack of legal personality. Ontario considered them to be of an “inferior” race that had no rights and therefore could not validly cede territories to the Crown. The Court finally ruled that the signature of the treaty was valid and consequently, before signing the treaty, the indigenous peoples had been owners of the land. This meant the indigenous sovereignty over their territories was recognized which at least partly put the status of indigenous peoples of that time into perspective. It was not until the second half of the 20th century that indigenous peoples obtained certain level of equality within the state. In 1960 they were given the right to vote. Nine years later the White Book of the liberal government promoted the integration of the indigenous peoples and recognized their diversity as well as the historical injustice they had suffered. Several ideas were proposed in order to give

26 District Court of Alberta, R.v.Pickard, 14 C.C.C. 33 (1908). 27 Judicial Committee of the Privy Council, St. Catherine’s Milling & Lumber Co. v. The Queen, 14. App.Cas. 46 (1888). 12

I. Remarks on indigenous peoples the Amerindians better opportunities, among them the transfer of powers to the province and the abolition of the Indian Act in order to give more rights to the communities themselves. In 1973 the famous Supreme Court decision Calder28 was published and recognized the aboriginal title of the Nishga. The SCC ruled that despite colonialism the title exists due to the historical occupation of the land. This led to an awakening in politics as the government realized that indigenous peoples had rights on their lands that were now protected by the Supreme Court. Thus, politics changed towards a more indigenous-friendly position and first agreements were negotiated, with the James Bay Convention of 1975 being the most successful. In 1982 the Constitution Act of 1982 was adopted that defined indigenous people of Canada to be the Indians, Métis and Inuit. Three years later the Royal Commission on Aboriginal Peo- ples was created in order to address the problems arising from the failure of the Meech Lake Accord and later the failure of the Charlottetown Accord. The work of the Commission was summarized in a report of 199629 that made an impact on Canadian jurisprudence. In 2004 the Supreme Court recognized the right of indigenous peoples to be consulted in affairs having an impact on them.30 In 2008 Prime Minister Stephen Harper publicly excused himself in the name of all Canadians for the historical injustice done to indigenous peoples and in 2010 the Canadian government finally published a declaration saying that it now officially endorses the UN Declaration on the Rights of Indigenous Peoples31 against which it had opposed three years earlier.32

3. Bilateral agreements with indigenous peoples: the numbered treaties signed with the Kingdom Between 1871 and 1921 a total of eleven treaties was signed between Canadian aboriginal peoples and the Crown. These so-called numbered treaties (or Post-Confederation Treaties) aimed to give large tracks of land to the federal government in exchange for money or goods.33 Even though the treaties were negotiated, several factors negatively influenced the equal position of the parties. First of all, during the negotiations, aboriginal languages were not used. Instead, the indigenous peoples faced a language they hardly understood and concepts that were unfamiliar to them, for example the cession of territory which implied that

28 SCC, Calder et al. v. Attorney-General of British Columbia, [1973] S.C.R 313. 29 A summary of the report can be found at http://www.aadnc-aandc.gc.ca/eng/1100100014597 (consulted 18.2.2012). 30 SCC, Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511 and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550. 31 See Chapter III.B.4.e. at p. 66. 32 The historical summary is based upon notes taken during a class of Doris Farget on “Droit des autochtones”. 33 Cf. Numbered Treaty Overview, available at: http://www.canadiana.ca/citm/specifique/numtreatyoverview_e.html (consulted 19.2.2012). 13

I. Remarks on indigenous peoples someone had property on this territory.34 For the Amerindians, nobody owns the territory and nobody dominates it. Moreover, indigenous peoples were not aware of the fact that the persons they negotiated with were colonialists. For them, white peoples were God’s representatives on Earth and thus they trusted them, believing that God would do no harm. In this context it also has to be noted that the treaties were negotiated during a period of famine during which many indigenous peoples lived in poverty and therefore considered the treaties to be a rescue. With the beginning of the signature of the numbered treaties, the sovereignty of the indigenous peoples in Canada started to die. The more treaties were signed, the more they lost their ability to decide by themselves what happened to their territories.35 a. Treaty No. 8 Treaty No. 8 is of particular importance as it covers the largest geographical territory that had been touched by the numbered treaties. It comprises the northern half of nowadays Alberta as well as parts of British Columbia, Saskatchewan and the Northwest Territories.36 Treaty No. 8 was negotiated with Cree, Beaver and Chipewyan Bands and it was estimated that it would affect more than 2700 Indians and more than 1700 Métis.37 As with all of the other treaties, Treaty No. 8 gives property rights of the territory to the Crown whereas the indigenous peoples living there lost their sovereignty. The treaty’s text also shows also that the indigenous peoples were no longer regarded as equal partners (as had been the case for the alliance treaties) but are rather qualified as savage and as subjects to the Crown. Apart from the loss of territory that is finally accepted by the indigenous peoples as they kept their rights to hunt and fish,38 the treaty also changed their way of living, another step towards their assimilation:

34 During a land claim process initiated by the Dené, Dr. June Helm, testifying before the judge, formulated it as follows: “How could anybody put in the Athapaskan language through a Métis interpreter to monolingual Athapaskan hearers the concept of relinquishing ownership of land, I don't know, of people who have never conceived of a bounded property which can be transferred from one group to another. I don't know how they would be able to comprehend the import translated from English into a language which does not have those concepts, and certainly in any sense that Anglo-Saxon jurisprudence would understand. So this is an anthropo- logical opinion and it has continued to puzzle me how any of them could possibly have understood this. I don't think they could have. That is my judgement.” (Supreme Court of the Northwestern Territories, Re Paulette (1973), 39 D.L.R. (3d) 45, cited after: Madill, Dennis F.K. Treaty Research Report-Treaty Eight (1899), p. 47 available at: http://www.aadnc-aandc.gc.ca/eng/1100100028809, consulted 4.3.2012 ). 35 Based on notes taken during a class of Doris Farget on “Droit des autochtones”. 36 Cf. Treaty Guide to Treaty 8, available at: http://www.aadnc-aandc.gc.ca/eng/1100100028805 (consulted 19.2.2012). 37 Cf. Madill Dennis F.K., Treaty Research Report, p.1. 38 See para. 8 of the treaty, available at: http://www.aadnc-aandc.gc.ca/eng/1100100028813#chp4 (consulted 19.2.2012 ): “And Her Majesty the Queen HEREBY AGREES with the said Indians that they shall have right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described […]” (emphasis of the original text). 14

I. Remarks on indigenous peoples

“FURTHER, Her Majesty agrees that each Band that elects to take a reserve and culti- vate the soil, shall, as soon as convenient after such reserve is set aside and settled upon, and the Band has signified its choice and is prepared to break up the soil, receive two hoes, one spade, one scythe and two hay forks for every family so settled, and for every three families one plough and one harrow, and to the Chief, for the use of his Band, two horses or a yoke of oxen, and for each Band potatoes, barley, oats and wheat (if such seed be suited to the locality of the reserve), to plant the land actually broken up, and provisions for one month in the spring for several years while planting such seeds”39 Thus, those members of indigenous peoples who decided to become sedentary and turn towards agriculture had advantages compared to those who did not. By signing the treaty the indigenous peoples that were affected also promised to observe the treaty and to behave as good and loyal subjects to the Crown.

4. Ancestral rights and the aboriginal title: realization of self-determination over a territory a. Constitutional protection Art. 35 of the Constitution Act 1982 recognizes in para. 1 the existing aboriginal rights, that is to say ancestral rights and the aboriginal title.40 Even though they are recognized by Canadian law, they have not been created by national law. Instead, their origins lie in the occupation of the territory by the indigenous peoples and represent the rights they had before the arrival of the Europeans.41 As will be seen later in this work, self-determination has many facets. Deny- ing the indigenous peoples’ sovereignty over their own territory had been one method of taking away most of it. In constitutionally recognizing the ancestral rights and the aboriginal title they are given back some of their rights and thus, implicitly, a certain autonomy which is one element of self-determination. But what exactly are the ancestral rights and the aboriginal title and what is their scope? For quite some time the Canadian common law has been silent on this question until in 1990, eight years after the repatriation of the Constitution, the SCC defined ancestral rights for the

39 Ibid., para. 17. 40 Art. 35(1): The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. 41 Cf. SCC, R. v. Van der Peet, [1996] 2 SCR 507, para. 40. ; see also: Gélineau-Asserey Éric/Lajoie André, Droits autochtones - Les conceptions canadiennes des droits ancestraux in: Revue juridique Thémis, Vol. 38 (2004), p. 9. 15

I. Remarks on indigenous peoples first time in its decision Sparrow.42 The Court ruled that ancestral rights are rights that allow the exercise of several activities on a certain territory.43 This can be realized, for example, through hunting and fishing rights, but also commercial rights enjoy protection as an ancestral right. The aboriginal title is a subcategory of the ancestral rights which is a stronger right than the “normal” aboriginal rights. The aboriginal title constitutes the exclusive right to occupy and use a territory that can be opposed to everyone. b. Recognition in common law In his decisions Van der Peet/Sappier/Gray the SCC further developed the elements that make up an ancestral right. In Van der Peet (1996)44 the Court ruled that in order to be recognized as an ancestral right, a right must concern a custom, tradition or activity that is fundamental for the aboriginal society, that existed prior to the contact with the Europeans and that forms an integral part of the distinctive culture of the aboriginal people in question. Furthermore, the SCC stated that ancestral rights are designated as collective rights to be exercised by a community as a whole. A sole individual cannot benefit from an ancestral right.45 The Court also enumerated several factors that have to be considered when deciding on the existence of an ancestral right.46 In Sappier and Gray (2006)47 the judges slightly changed the criteria, exchanging “integral part to distinctive culture” with “integral elements of the way of life”: “ As I have already explained, the purpose of this exercise is to understand the way of life of the particular aboriginal society, pre-contact, and to determine how the claimed right relates to it. This is achieved by founding the claim on a pre-contact practice, and determining whether that practice was integral to the distinctive culture of the aboriginal people in question, pre-contact. Section 35 seeks to protect integral elements of the way of life of these aboriginal societies, including their traditional means of survival. Although this was affirmed in Sparrow, Adams and Côté, the courts below queried whether a practice undertaken strictly for survival purposes really went to the core of a people’s identity.”48

42 SCC, R. v. Sparrow, [1990] 1 S.C.R 1075. 43 Cf. Ibid., p. 1086. 44 SCC, R. v. Van der Peet, [1996] 2 S.C.R 507, para. 46, 60. 45 Ibid., para 69. 46 Ibid., para 49-71, e.g. the view point of the indigenous group in question, the continuity of the right from the time of the contact onwards or the European influence on the customs or traditions. 47 SCC, R. v. Sappier; R. v. Gray, [2006] 2 S.C.R. 686. 48 Ibid., para. 40. 16

I. Remarks on indigenous peoples

However, in its most recent decision from November 201149 the SCC goes back to the elements developed in Van der Peet, stating that the criterion of “integral element to the way of life” should not be interpreted in a way as to derogate the criterion of the “distinctive culture”.50

With regard to the aboriginal title, it should be noted that it has been recognized somewhat earlier in the Supreme Court’s decision Calder51 which was the first step towards the further acknowledgement of rights over a territory. In Delgamuukw52 it then is more precisely explained what exactly the aboriginal title is supposed to be: “[…]I have arrived at the conclusion that the content of aboriginal title can be summarized by two propositions: first, that aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures; and second, that those protected uses must not be irreconcilable with the nature of the group’s attachment to that land”53 Still, there are some limits to the aboriginal title, the most important being that the title cannot be used in a manner that is irreconcilable with the nature of the attachment to the land.54 Moreover, proof must be provided that shows the continuity of the occupation of land prior to contact; interruptions, however, are possible.55 The fact that the aboriginal title demands a physical occupation of land complicates the recognition of the aboriginal title for nomadic indigenous peoples whose culture and traditions want them to move regularly. They also occupy territory, but in a different way and thus it is nearly impossible for them to invoke an aboriginal title.

49 SCC, Lax Kw’alaams Indian Band v. Canada (Attorney General), [2011] S.C.C 56. 50 Ibid., para. 54: “However, the reference in Sappier to a pre-contact “way of life” should not be read as de- parting from the “distinctive culture” test set out in Van der Peet[…]”. 51 SCC, Calder et al. v. Attorney-General of British Columbia, [1973] S.C.R 313. 52 SCC, Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010. 53 Ibid., para. 117. 54 Cf. Ibid., para. 124. 55 See: SCC, Tsilhqot'in Nation v. British Columbia, [2007] B.C.S.C. 1700. 17

II. The right to self-determination

A. Historical background Historically, the idea of self-determination started to emerge after World War I with the disintegration of the Austro-Hungarian, Russian and Ottoman Empires.56 The general idea was that nations should have the possibility to exercise their own sovereign wills without oppression by other states. The principle, also promoted by US President Wilson, comprised elements of democracy, individual freedom and representative government.57 Self-determination then made an impact on the creation of the League of Nations58 and later became a general principle within the United Nations.59 Art. 55 of the UN Charter, for example, states that “with a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote […]”. In the following years, self-determination became increasingly “popular” and got mentioned in different resolutions and declarations. One of the first documents explicitly referring to the right to self-determination was the Declaration on the granting of independence to colonial countries and peoples, contained in the resolution 1514.60 However, at that time it was more of a general principle than a right. Furthermore, it seemed clear that its application was restricted to peoples under colonial rule. Things started to change in the 1960s when the Inter- national Covenants61 both made self-determination a human right in their common Art. 1. Just four years after their adoption, the UN Declaration on Friendly Relations62 referred to self- determination as a principle several times and stressed that a violation against this principle was, for example, the subjection of peoples to alien subjugation, domination and exploitation.

56 Cf. Dalton Jennifer E., International Law and the Right of Indigenous Self-Determination: Should Internation- al Norms be Replicated in the Canadian Context? Working Paper 2005 (1) Queen’s University, p.5. 57 Cf. Pentassuglia Gaetano, State Sovereignty, Minorities and Self-Determination. A Comprehensive Legal Review in: International Journal on Minority and Group Rights, Vol. 9 (2002), p. 304. 58 The limited use of self-determination however did not give way to the emerge of customary law as a League of Nations Commission of Jurists found the existing practice as not sufficient enough (Cf. Pentassuglia, State Sovereignty (2002), p. 303.) 59 Cf. Dalton, International Law (2005), p.5. 60 General Assembly Resolution 1514 (XV) (A/RES/1514(XV)) of 14 December 1960, Art. 2:All 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. 61 International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, both adopted in 1966. 62 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among states in accordance with the Charter of the United Nations, adopted by the General Assembly on 24 October 1970 in the resolution 2625 (XXV) (A/RES/25/2625). 18

II. The right to self-determination

In jurisprudence, self-determination was recognized as a right applicable in situations of decolonization.63 Other international documents mentioning the right to self-determination are for example, the Helsinki Final Act (1974)64 and the African Charter of Human and Peoples Rights (1981), the latter stating that “all people shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination”.65 The right to self-determination has been further developed by the Human Rights Committee, constantly pending between its ignorance and protection.66 With regard to indigenous peoples, the newest legal instruments referring to self-determination are the UN Declaration on the Rights of Indigenous Peoples and the Draft American Declaration on the Rights of Indigenous Peoples.

B. The character of the right to self-determination

As stated by Xanthaki: “Self-determination is a thorny topic in international law with remarkable contradictions.”67 Its complexity also arises from the fact that there is no clear definition, although attempts have been made to classify realizations of self-determination. In this context, the traditional distinction between internal and external self-determination can be found. Nevertheless, newer approaches instead differ between substantive and remedial aspects, with the first being further divided into so-called constitutive and ongoing aspects. An- other way of describing the scope of self-determination is the minimalist v. maximalist approach. All of these concepts will be discussed in this chapter, followed by a brief outline of the type of norms that generally help incorporate the internal right to self-determination.

1. Internal and external self-determination The distinction between internal and external aspects is the most common description of self- determination and at the same time the least complex. External self-determination generally refers to independent statehood, that is the rejection of foreign rule and the possibility to de-

63 ICJ cases concerning Western Sahara and East Timor, see Chapter III.B.2. at p. 51. 64 Conference of Security and Co-operation in Europe, The Final Act of the Conference on Security and Co- operation in Europe of 1 August 1975 (14 I.L.M. 1292), Art. VIII: By virtue of the principle of equal rights and self-determination of peoples, all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development. 65 African Charter of Human and Peoples Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), Art. 20, emphasis added. 66 For example in not dealing with indigenous peoples claims for self-determination on the one hand, but in criti- cizing in its reports the status of self-determination within certain states. See Chapter III.B.3 at p. 53. 67 Xanthaki Alexandra, Indigenous Rights and United Nations Standards. Cambridge and New York, 2007, p. 131. 19

II. The right to self-determination termine an entity’s external international status and, in its most extreme form, the right to secession. Historically, external self-determination has been accorded to territories under external or foreign occupation. Internal self-determination, on the other hand, refers to rights that are given to a people within a sovereign country, e.g. the right to elect and keep the government of its choice (autonomy or self-government), to protect and support the peoples’ distinct culture and to freely choose its economic and social development.68

2. Substantive and remedial aspects of self-determination For Anaya, substantive aspects of self-determination are those found within the idea of minimum conditions that are necessary for the constitution and functioning of a legitimate government. He then divides them into two groups: the consecutive aspects of self-determination require a government that is created by processes based on the will of the people subject to the government. The ongoing aspects denote the part of self-determination that refers to a government under which the governed people have the possibility to live and develop freely. Anaya believes that this description is advantageous to the internal/external comparison: “The internal/external dichotomy effectively is premised on the conception, reject earlier, of a limited universe of “peoples”[…]. Given the reality of multiple human associat- ed patterns in today’s world, including but not exclusively those organized around the state, it is distorting to attempt to organize self-determination precepts into discrete internal versus external spheres defined by reference to presumptively mutually exclusive peoples”.69 Consecutive self-determination demands participation and consent every time institutions of government are created or altered or when the scope of their authority is extended, and thus realizes the concept of the International Covenants on human rights that refer to the free determination of the political status. The free pursuit of the economic, social and cultural development is therefore carried out by the ongoing aspects as ongoing self-determination requires the making of meaningful choices in the different areas of life and a political order where it is made possible for a people to keep its distinct culture.

68 See also: Berg Brad, Introduction to Aboriginal Self-Government in International Law: An Overview in: Sas- katchewan Law Review, Vol. 26 (1992), p. 2; Bryant Michael J., Aboriginal Self-Determination: The Status of Canadian Aboriginal Peoples at International law in: Saskatchewan Law Review, Vol. 26 (1992), p.6.; Dalton, International Law (2005), p. 6 and Lombart Laurent, Le droit à l’autodétermination des Québécois dans le cadre fédéral-canadien: Le Québec peut-il accéder à l’indépendance ? in: Revue québécoise de droit international, Vol. 16 (2003), p. 4. 69 Anaya S. James, Indigenous peoples in international law, Oxford and New York, 2004, p. 101. 20

II. The right to self-determination

Remedial self-determination was born out of decolonization as colonialism violated both the consecutive and the ongoing aspects of self-determination. It is used to put into question the doctrine of effectiveness70 and to avoid the rise of colonial rule. Moreover, remedial self- determination stresses to find remedies if the right to self-determination has been violated and also tries to find these remedies in accordance with the endeavor of the concerned groups. In this context, the right to secede is not automatically granted, but secession can prove to be an appropriate remedial.71

3. The minimalist and maximalist approach to self-determination The classification of a minimalist and maximalist approach when defining the scope of self- determination is carried out by Xanthaki. The minimalist approach equates self-determination with independence. This approach has mainly been chosen by earlier international legal instruments such as the International Cove- nants, the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty (1965) and the Declaration on Friendly Relations of 1970. From about 1975 onwards there had been a shift towards a different signification of self-determination that was then expressed for example by the Final Act of Helsinki. Nevertheless, during the 1990s self-determination as independence regained importance due to the disintegration of the former Soviet Union and Yugoslavia. The difference was that even though legal instruments focused on independence, it seemed clear that there were other meanings of self-determination too, such as participatory rights within the states or the possibility of autonomous regimes.72 In contrast, the maximalist approach sees self-determination as an umbrella right. In general, this means that the right to self-determination also comprises economic and cultural aspects. Various claims can be based on a maximalist perception of self-determination, for example for democracy and political rights, for distinct judicial systems, for religious and educational freedom. Xanthaki illustrates this approach with a statement of indigenous peoples made in 1987: “The right of self-determination is fundamental to the enjoyment of all human rights. From the right to self-determination spring the right to permanent sovereignty over land-including aboriginal, ancestral and historic lands-and other natural resources, the

70 The doctrine of effectiveness mainly says that if sovereignty is de facto exercised over territory a de jure souvereignty follows automatically. 71 Cf. Anaya, Indigenous Peoples (2004), p. 104f; see also: Henriksen John B. (ed.), Sami Self-Determination. Scope and Implementation in: Gáldu Čála, Journal of Indigenous Peoples Rights, Vol. 2 (2008), p. 51f. 72 Xanthaki, United Nations Standards (2007), p. 151. 21

II. The right to self-determination

right to develop and maintain governing institutions, the right to life and physical integrity, way of life and religion.“73 A positive aspect of this approach is the fact that self-determination is regarded as an evolving concept that aims to restore global justice. On the other hand, it is dangerous to link self- determination with other rights as claims based on loose links often are not very successful. In general, the minimalist approach can be praised for its certainty and clarity and the maximalist approach for its space for evolution and adjustment.74

4. Elements of self-determination No matter which description of self-determination is chosen, it is certain that self- determination cannot be defined in one word; quite the contrary, self-determination is realized by different rights such as the right to cultural identity, to natural resources, the right to self- government or autonomy and nondiscrimination a. Cultural identity Culture very often is the one thing that distinguishes one community from another and therefore it is fundamental to the realization of self-determination. For some communities it is essential to exercise full cultural authority whilst for others it is essential that distinctiveness is realized by the state.75 In any case, cultural rights form an important part of the norms bring- ing self-determination to life. Nevertheless, this is not to say that rights to cultural identity are absolute, as the Human Rights Committee has expressed in a case concerning the Sami, Lansmänn et al. v. Finland.76 b. Control of natural resources In general there is a strong bond between indigenous peoples and their lands which means that the control of natural resources is considered to be a crucial element of self- determination. Problems arise mainly when the natural resources on indigenous territories are

73 Cited after: Xanthaki, United Nations Standards (2007), p. 152. 74 Cf. Ibid., p. 146f. 75 Cf. Van Walt Michael C./Seroo Onno (eds.) The Implementation of the Right to Self-Determination as a Con- tribution to Conflict Prevention, Report of the International Conference of Experts held in Barcelona from 21 to 27 November 1998, UNESCO Division of Human Rights Democracy and Peace and the UNESCO Centre of Catalonia, Centre UNESCO de Catalunya, 1999, p. 14. 76 Länsman et al. v. Finland, Communication No. 511/1992 (UN Doc. CCPR/C/52/D/511/1992), para. 9a: “Art. 27 [of the ICCPR] requires that a member of a minority shall not be denied his right to enjoy his culture. Thus, measures whose impact amount to a denial of the right will not be compatible with the obligations under Art. 27. However, measures that have a certain limited impact on the way of life of persons belonging to a minority will not necessarily amount to a denial of the right under Art. 27.” 22

II. The right to self-determination of a high economic value and states thus allow exploitation. However, this often results in the damage of the living environment of indigenous peoples where, for example, sacred places and fertile lands can be found.77 An important case concerning natural resources is the case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua78 before the Inter-American Court of Human Rights, where the Court ruled as follows: “Through an evolutionary interpretation of international instruments for the protection of human rights, taking into account applicable norms of interpretation and pursuant to article 29(b) of the Convention -which precludes a restrictive interpretation of rights-,it is the opinion of this Court that article 21 of the Convention protects the right to property in a sense which includes, among others, the rights of members of the indigenous communities within the framework of communal property, which is also recognized by the Constitution of Nicaragua.”79 c. Self-government or autonomy The idea of self-government is a government functioning in accordance with the will of the people who are governed. This can be realized through autonomy on the one hand and participation rights on the other. Autonomy mainly means that indigenous peoples can have their own institutions of governance that respect their history, traditions and legal systems (for example customary laws developed over centuries or different conflict resolution measures80). Consequently, these institutions should neither be diminished nor modified without the indigenous peoples’ consent. The right to fully participate at all levels of decisions making is protected by several instruments, among them the UN Declaration on the Rights of Indigenous Peoples81 and ILO Con- vention 169.82 In the context of indigenous peoples that is to say that they should be consulted whenever the state makes decisions that may affect them.83

77 Cf. Van Walt/Serroo (eds.), Implementation, p. 14. 78 Inter-American Court of Human Rights, The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judg- ment of 31 August, 2001, (Ser. C) No. 79 (2001). 79 Ibid., Para 148. Communal property was then defined as “the lands, waters, and forests that have traditionally belonged to the Communities of the Atlantic Coast” (para. 150). 80 For example, indigenous peoples use sentencing circles to solve disputes. Sentencing circles usually consist of the people interested in the resolution of a dispute (e.g. the offender, his family, the victim etc.) and it symboliz- es a connection to the order of the non-human world as well as the equality of the participants. (Cf. Borrows John, With or Without You: First Nations Law (in Canada) in McGill Law Journal, Vol. 41 (1996)). 81 Art. 5. 82 Art. 6. 83 Cf. Anaya, Indigenous Peoples (2004), p. 153f. 23

II. The right to self-determination d. Nondiscrimination Anaya sees nondiscrimination as a minimum condition for the exercise of self-determination, which means that, at least, the absence of policies that could discriminate against indigenous peoples should be guaranteed. In this context, it also has to be ensured that there are no norms that accord certain “inferiority” to indigenous peoples or their culture.84 The importance of nondiscrimination for indigenous peoples was also highlighted at the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intoler- ance in 2001: “We emphasize that, in order for indigenous peoples freely to express their own identity and exercise their rights, they should be free from all forms of discrimination […]. Ef- forts are now being made to secure universal recognition for those rights […], including the following: to call themselves by their own names; to participate freely and on an equal footing in their country’s political, economic, social and cultural development; to maintain their own forms of organization, lifestyles, cultures and traditions; to maintain and use their own languages […].”85 e. The idea of a third order of government “Le défi est de faire ce qu'on aurait idéalement dû faire en 1867, c'est-à-dire introduire les autochtones comme partenaires au sein du Canada, au sein de la fédération canadienne”86 - within the concept of self-determination also lies also the possibility for indigenous peoples to form a so-called third order of government. In Canada, this would mean an own order government next to federal and provincial government. This idea has been discussed over the years; however it is not realized today. The most definite attempt to the creation of a third order of government has been made by Section IV of the Charlottetown Accord of 1992:87 “The recognition of the inherent right of self-government should be interpreted in light of the recognition of Aboriginal governments as one of three orders of government in Canada.” Still, even if efforts are made to create this third order, the conformity of an aboriginal government within the Canadian constitution remains unclear as the Art.s 91 and 92 of the Con- stitution Act of 1867 carry out a final distribution of powers between the federal and the provincial government.

84 Cf. Ibid., p. 130. 85 Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, 31 August to 8 September 2001 (UN Doc. A/CONF.189/12), para. 42. 86 René Dussault, judge at the Court of Appeal for Québec, cited after: Simard Caroline: Un troisième ordre de gouvernement? in: Le Journal du Barreau, Vol. 29 (1997). 87 The Charlottetown Accord was a document amending the constitution of Canada, proposed in 1992, that never entered into force due to a negative referendum. 24

II. The right to self-determination

C. Secession as the result of the exercise of the right to self-determination?

With regard to today’s society, during the previous decades there have been very few serious attempts to secede by people other than those under colonial rule. Seceding from an existing and overall functioning state has proven difficult, also when it subsequently comes to the acceptance of the new state by the world community. The main obstacle here is the question whether a unilateral declaration of independence is legal in international law; a question that has not yet received a satisfying answer. Nevertheless, two decisions should be mentioned when talking about the right to secede, namely the one of the SCC regarding the eventual secession of Quebec and the ICJ’s advisory opinion on the declaration of independence of Ko- sovo.

1. The case of the secession of Quebec before the SCC The issue of a secession was first raised in 1980, after a referendum organized by the Parti Québécois that asked the people living in Quebec whether or not they would support a secession. That year nearly 60% voted against the sovereignty. In the years following, several political events occurred that were significant enough to make the Québécois reconsider their opinions, for example the fact that the Constitution Act of 1982 had been adopted without formal consent of Quebec. Thus, in 1994 the Parti Québécois decided to hold a new referendum in 1995, asking the population of Quebec once more if they agreed on Quebec becoming sovereign. Again, the no-votes outweighed the affirmatives, this time only by 1.16% (49.42% Yes, 50.58% No). In the aftermath of the referendum Lucien Bouchard, leader of the Parti Québécois, made plans for yet another referendum, which led Jean Chrétien, Prime Minister at that time, to initiate a reference. 88 The questions addressed to the Court dealt with national law as well as the relation between national and international law, which will only briefly be discussed here. With regard to international law, the second question is of particular importance: “Does international law give the National Assembly, legislature or government of Que- bec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the Na- tional Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?”89

88 SCC, Reference by the Governor in Council concerning certain questions relating to the secession of Quebec from Canada (Reference Re Secession of Quebec) [1998] 2 S.C.R. 217. 89 Ibid., para. 2. 25

II. The right to self-determination

To answer the first question (whether a secession would be legal in the light of national law), the Court discussed the general principles underlying the Canadian Constitution, such as democracy, federalism, constitutionalism and the rule of law and applied them in the secession context.90 The Court then reaffirmed that the Constitution remains, under all circumstances, applicable and ruled that secession cannot be accomplished by the National Assembly, the legislature or government of Quebec unilaterally91 and that the only possibility would be negotiations between the federal and the provincial government. For the second question the Court decided to address the argument of “effectivity” to answer whether a positive legal right to unilateral secession exists in international law. However, it was also noted that, even regardless of the existence of such a right, it cannot be predicted how international law would react to then de facto existing reality.92 In para. 112, the Court describes the problem in international law when it comes to secession: “International law contains neither a right of unilateral secession nor the explicit denial of such a right, although such a denial is, to some extent, implicit in the exceptional circumstances required for secession to be permitted under the right of a people to self- determination, e.g., the right of secession that arises in the exceptional situation of an oppressed or colonial people” However, the SCC declared that the right to self-determination as granted to peoples (and not entities) is recognized today as more than a convention of international law, but a general principle. To answer the second question, the Court also discussed the UN Charter as well as the International Covenants and the 1993 Vienna Declaration and Programme of Action and the Helsinki Final Act of 1975 and then turned to address the problematic of the terms “peoples” in international law.93 For the five judges it seemed clear that in general, “peoples” can also be groups within an existing state: “It is clear that ‘a people’ may include only a portion of the population of an existing state. The right […] is generally used in documents that simultaneously contain refer- ences to ‘nation’ and ‘state’. The juxtaposition of these terms is indicative that the reference to ‘people’ does not necessarily mean the entirety of a state’s population.”94 All the same, it should be noted that even if the Québécois would fulfill certain conditions to be considered as a specific “people” (such as a common culture and language, as for many other groups in Canada as well as in Quebec), when it came to the scope of the right to self-

90 Cf. Ibid., para. 49-83. 91 Cf. Ibid., para. 104. 92 Cf. Ibid., para. 110. 93 Cf. Ibid, para. 114-123. 94 Ibid., para. 124. 26

II. The right to self-determination determination, the SCC mainly referred to existing international documents such as the one cited above. Furthermore, the Court analyzed the meaning of “colonial people” as well as “peoples subject to alien subjugation, domination or exploitation” and concluded that the Quebecer do not constitute such a people.95 Consequently the Court’s summary on question two said that: “[…] the international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies […] the people in question are entitled to a right to external self-determination because they have been denied the ability to exert internally their right to self-determination. Such exceptional circumstances are manifestly inapplicable to Quebec under existing conditions.”96 The Court also makes a short reference to aboriginal peoples, whose rights naturally would be at stake in the unlikely event of secession, and reaffirms that legally, Quebec does not have the right to secede unilaterally. Regardless of the negative answer to question 2, the Court also takes into account the arguments of the amicus curiae that even if international law may not grant a right to secede, it also does not explicitly prohibit secession and that there still might be international recognition to a political reality later on. With regard to these arguments, the Court stated that even if other states recognized a new state of Quebec, international recognition is not alone constitutive of statehood and is definitely not prone to serve as a source of a legal right to secede.97 As the answers to questions one and two were the same, there was no further need to answer question three.

In the reference, the Supreme Court, as a national court, has in fact answered a question of national law but also discussed the question in the light of international law. Therefore, even if the Supreme Court does not constitute an international tribunal, the reference helps expli- cating the raison d’être of the right to secede in international law and thus can be used as a guideline when this issue is at stake. The Court makes clear that secession can only be legal under special circumstances, among them colonial rule being the most important. However it is certain that this does not apply in the case of Quebec:

95 Cf. Ibid., para 125-133. 96 Ibid., para. 138. 97 Cf. Ibid., para. 142. 27

II. The right to self-determination

“Quebec is certainly not a colony of the rest of Canada, nor is it geographically separate; it therefore lies entirely outside the circumstances in which the postwar orthodoxy would have recognized a right of secession.”98

2. The ICJ’s advisory opinion on Kosovo's declaration of independence After years of internal conflicts and war and in face of a deteriorated humanitarian situation, the Security Council adopted its Resolution 1244 in 1999, which called for an end to the violence in Kosovo and established an international presence in the territory. Kosovo was thus placed under UNMIK administration.99 The resolution allowed for substantial autonomy of Kosovo within the Federal Republic of Yugoslavia (as legally succeeded by the Republic of Serbia).100 Six years later, Martti Ahtisaari was appointed as Special Envoy for the future status process of Kosovo.101 In February 2007 he submitted a draft comprehensive proposal for the Kosovo status settlement102 and one month later, the Special Envoy stated in his report that, for him, it seemed clear that the parties were unable to reach consensus on Kosovo’s future status. Later that year, in December 2007, further negotiations were held under the su- pervision of representatives from Russia, the European Union and the United States. Howev- er, despite lots of efforts being made, an agreement could not be reached.103 On 17 February 2008, the Kosovo Assembly adopted the Declaration of Independence, stating that: “We, the democratically-elected leaders of our people, hereby declare Kosovo to be an independent and sovereign state.”104

98 Webber Jeremy, The Legality of a Unilateral Declaration of Independence under Canadian Law in: McGill Law Journal, Vol. 42 (1997). With regard to colonialism the theory of so-called “psychological” colonialism is interesting: “Si juridiquement le Québec n’est pas une colonie du Canada, psychologiquement nombre de Qué- becois s’estiment colonisés par der personnes qui ne cherchent qu’à les supplanter” (Lombart Laurent, Le droit à l’autodétermination des Québécois dans le cadre fédéral-canadien: Le Québec peut-il accéder à l’indépendance ? in: Revue québécoise de droit international, Vol. 16 (2003)) Within this theory, psychological colonalism could be declared illegal on the basis of resolution 2548 (XXIV) (UN Doc. A/Res/2548(XXIV)). However, this remains only one theory without considerable impact on international law. 99 Cf. ICJ, Accordance With International Law Of The Unilateral Declaration Of Independence In Respect Of Kosovo, Advisory Opinion of 22 July 2010, ICJ Records (2010), para 58f (Kosovo Advisory Opinion) 100 Security Council resolution 1244 (1999) [on the deployment of international civil and security presences in Kosovo] (S/RES/1244 (1999)), para. 10. 101 Cf. Pippan Christian, The International Court of Justice’s Advisory Opinion on Kosovo’s Declaration of Independence: An exercise in the art of silence in: Europäisches Journal für Minderheitenfragen, Vol. 3 (2010), p. 147. 102 Comprehensive Proposal for the Kosovo Status Settlement of 26 March 2007 (UN Doc. S/2007/168/Add.1) 103 Kosovo Advisory Opinion, para. 68-73. 104 Kosovo’s Declaration of Independence, para. 1 (available at: http://www.assembly-kosova.org/?krye= news&newsid=1635&lang=en, consulted 13.2.2012). 28

II. The right to self-determination

In October 2008, the GA adopted a resolution requesting the ICJ to answer the following question: “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?” 105 In the first part of the answer, the ICJ cited several decisions on the right of self-determination such as the South West Africa case or the East Timor case106 as well as the Declaration on Friendly Relations and reaffirmed the importance of the principle of territorial integrity. It then noted that different views exist on whether the right to self-determination allows also for a population of an existing state to secede if this happens outside the context of peoples subject to domination, subjugation or exploitation. However, the decision read that it is not necessary to pronounce itself on this question as the question addressed to the Court only concerns the legality of a unilateral declaration of independence of Kosovo.107 To answer this particular question it seemed sufficient to determine whether either general international law or lex specialis created by the Resolution 1244 had been violated. The Court then briefly ruled that in international law there exists no general prohibition of declarations of independence and thus, international law had not been violated.108 The ICJ subsequently analyzed Resolu- tion 1244 and concluded that this resolution had not been adopted to determine the final status of Kosovo whereas that is exactly what the declaration of independence had done. Thus, the two instruments operate on a different level109 and the Court found that Resolution 1244 is not prone to prevent the authors of the declaration to declare Kosovo to be an independent and sovereign state.

The ICJ’s advisory opinion is somewhat disappointing as it merely clarifies the problem of secession in international law. It fails to note that in certain situations unilateral declarations of independence are unlawful, for example, if they are the result of racial discrimination or human rights violations.110 Moreover, the Court does not provide a solution on how to deal with secession in situations other than that of peoples subject to domination, subjugation or exploitation that may result from a unilateral declaration of independence:

105 General Assembly Resolution 63/3, Request for an advisory opinion of the International Court of Justice on whether the unilateral declaration of independence of Kosovo is in accordance with international law (UN Doc. A/RES/63/3). 106 See chapter III.B.2.a. of this work. 107 Kosovo Advisory Opinion, para. 82, 83. 108 In this context, the Court also referred to the reference concerning the secession of Quebec and came to the result that two different questions were at stake: in the case of Quebec, it had been asked whether international law would give a positive entitlement to secede whereas in the case of Kosovo the question is if a secession violates international law. 109 Kosovo Advisory Opinion, para. 114. 110 Cf. Pippan, The International Court of Justice’s Advisory Opinion (2010), p. 156. 29

II. The right to self-determination

“Can it be that an entity declares independence without violating international law but then violates international law, when it effects independence by seceding and creating a new state?”111 Thus, if unilateral declarations of independence do not violate international law one could argue that secessions do not either;112 however this would be a point of view generally not accepted by the international community. Cirkovic sees in the vagueness of the ICJ’s opinion a symptom of a broader problem, namely the international legal system’s inability to provide for clear rules on how to deal with external self-determination.113 The Court had had the possibility to play an important role regarding the development of the right of self-determination: Affirming Kosovo’s right to secede would have affirmed the right of self-determination of the Kosovars and declaring that unilateral secession is only legal in the context of a group suffer- ing repression would have forced states to increase their minority rights in order for an eventual secession of a group not to be lawful.114

D. Defining “peoples“ in international law: a year-long struggle

With regard to all human rights instruments protecting self-determination one thing is undis- puted: it is a right granted to “peoples”, a term that illustrates the collective character of the right. Thus, beneficiaries are “peoples” and as such not individuals. It should be noted here that there is a difference between the definition of “peoples” as to be found in the first chapter of this work and the one that is going to be discussed on the following pages. The first one deals with the definition in general, while the second one deals specifically with the definition in the self-determination sense. A people may satisfy the criteria of both definitions or of just one of them. Not surprisingly the implication of the term “peoples” is dynamite as to who exactly is allowed to be a “people” and who is not. Ivor Jennings, a British lawyer, once explained the

111 Muharremi Robert, A Note on the ICJ Advisory Opinion on Kosovo in: German Law Journal, Vol. 11 (2010), p. 880. 112 Cf. Ibid. 113 Cf. Cirkovic Elena, An Analysis of the ICJ Advisory Opinion on Kosovo’s Unilateral Declaration of Inde- pendence in: German Law Journal, Vol. 11 (2010), p. 912. 114 Cf. W.a., Recent International Advisory Opinion in: Harvard Law Review, Vol. 124 (2011), p. 1105; for further information on the advisory opinion see for example: Bianco Guiseppe, And nothing else matters. The ICJ’s judicial restraint in its Opinion on Kosovo’s independence in: Perspectives of Federalism, Vol. 2 (2010) p. 24- 34; Cerone John, Domestic and International Legal Responses to Emerging Migration Issues: The International Court Of Justice And The Question Of Kosovo's Independence in: ILSA Journal of International & Comparative Law, Vol. 17 (2011); Falk Richard, The Kosovo Advisory Opinion: Conflict Resolution And Precedent in: American Journal Of International Law, Vol. 105 (2011), Yee Sienho, Notes on the International Court of Justice (Part 4): The Kosovo Advisory Opinion in: Chinese Journal of International Law, Vol. 9 (2010), p. 763-782. 30

II. The right to self-determination unavoidable problem that arises from the creation of a right that is formulated as vaguely as the right to self-determination: “On the surface, it seemed reasonable: let the people decide. It was in fact ridiculous because the people cannot decide until someone decides who are the people.”115 Now, more than fifty years after Jennings got to the heart of the problem, scholars are still trying to figure out the solution. Partial remedy had been found through the UN Declaration on the Rights of Indigenous Peoples that explicitly mentions self-determination; however it remains unclear whether or not indigenous peoples form a part of the group of beneficiaries addressed by other documents, such as for example the ICCPR. The only thing that is generally agreed on is that there is no agreement when it comes to the definition of self- determination.

Anaya offers an analysis of the concept of “peoples” in international law, proposing three different types of interpretations that are, as he admits, all problematic: The first view states that “peoples” are only those under conditions of colonialism and sees decolonization as the result of self-determination. The weak points here are without doubt the fact that this interpretation very much limits the applicability of the right which would be merely a human right, considering that seen from this point of view there are more peoples excluded than included. The second type is more embracing: “peoples” for the purpose of self-determination status are the aggregate populations of a state as well as those under (former) colonial rule. Comparing it to the first one it resolves the problem of not being a human right but instead brings up an issue that restricts its utility as well: An aggregate population means the whole population of a state. Thus, there is no possibility for certain groups or minorities within a state to invoke this right as only all of the people living in this state could benefit from it. The third interpretation suggests not to define “peoples” by their affiliation to a state or to a territory within clear borders, but to take into account ethnographic and historical aspects. Thus, “peoples” would be those groups that once were sovereign states or are entitled to be states. This theory emerged mainly after World War I when dividing Europe along ethnographic lines, which directly leads to the problem of application: it mainly had been suitable

115 Jennings Ivor, The Approach to Self-Government, Cambridge, 1956, p. 56. 31

II. The right to self-determination for the time after World War I but does not respond to modern-days concepts of state organization.116 Another approach is to assume that indigenous peoples are beneficiaries of self-determination rights as long as they fulfill, just as any other people, certain conditions of self-determination. Such conditions would be: “1. peoples of a distinct character; 2. who are subject to domination and exploitation either (a) by subjugation or oppression; or (b) under a racist regime; 3. who are non-self-governing; and 4. who are living in a distinct geographic territory”117 In this context, peoples with a distinct character are those who share a common history, culture, religion, language and a specific awareness of their belonging to a distinct group (regardless if they have been exposed to colonial scenarios or not). As to criteria two to four, they are applied in their “normal” sense, e.g. domination or exploitation being a certain oppression imposed from the outside of the group that is clearly expressed.118 Bryant, a follower of this approach, then applies it to Canadian aboriginal peoples: He argues that, as the Canadian constitution recognizes the aboriginal peoples as being a distinct group benefiting from special protection (due to their history and culture), it seems clear that they meet the requirements of condition one. When it comes to domination or subjugation it has to be noted that the Canadian government in the past generally tended to violate indigenous peoples rights instead of protecting them and also tried to force their assimilation with the non- indigenous society which can be seen as certain oppression imposed by the dominant power in the state. Moreover, the fact, that aboriginal peoples are essentially non-self-governing, results from the subjugation on the one hand and from the lack of proof that effective indigenous self-governance exists on the Canadian territory on the other hand.119 Even though Bry- ant admits that there can be certain insecurities regarding the distinct territory criterion he puts

116 Cf. Anaya, Indigenous Peoples (2004), p. 100, 101; Anaya thus proposes his own ideas on the different possibilities of a definition, other authors prefer analyzing and comparing international documents in order to find out who could benefit from the right to self-determination (see Xanthaki, United Nations Standards (2007), p. 133- 136; Åhrén/Henriksen/Scheinin, The Nordic Sami Convention (2007), p. 67-72). This approach will not be discussed here as in the following chapter international instruments and their beneficiaries will be analyzed in detail. 117 Bryant Michael J., Aboriginal Self-Determination: The Status of Canadian Aboriginal Peoples at Internation- al law in: Saskatchewan Law Review, Vol. 26 (1992), p. 7. 118 Cf. Ibid., p. 8f. 119 Cf. Ibid., p. 10-13. 32

II. The right to self-determination forward the argumentation indigenous peoples “have historically inhabited definable lands under indigenous law”.120

As already mentioned, there is no homogenous definition of “peoples” in the sense of law and thus it cannot be provided here. The two ideas discussed are nothing but two examples on how to approach this issue; many more of them exist and none of them can be regarded as the perfect solution. Anaya himself points out the problematic of his classifications. With regard to Bryant’s theory it should be noted that even if it favors the position of indigenous peoples and paves the way to a better recognition of their rights, there definitely are weak points as well. One of them would be the danger of being too “open”. When applying the criteria as Bryant did there may be many more groups benefiting from the right than it was originally intended. At least it seems questionable if a violation of rights is enough to cause what is called domination just as the argument of the “forced assimilation” that took place after the contact with the Europeans can hardly be invoked today.

In the end one has to ask oneself whether a real definition would be of any benefit. After all, today’s society is so multicolored and diverse that one strict definition would probably never be able to satisfy all the different situations that emerge from such a society. Instead, one should rather focus on the meaning of self-determination and its realizations. The right as such should be guaranteed to all peoples without exclusion; its application, however, might then differ in certain ways from one group to another.

120 Ibid., p. 13. 33

III. The right to self-determination of indigenous peoples in international and regional law

A. Indigenous peoples as subjects of international law

In contrast to the, not yet answered, question relative to their qualification of “peoples” in the sense of international law, the identity of indigenous peoples as subjects on the international level has undergone a long development of ups and downs until their de facto recognition today.

1. Historical background:going from sovereign to dependant and back First ideas on how to treat indigenous peoples as subjects of law emerged in the early 16th century. In the period between the 16th and the 18th century, authors of the Law of Nations, as predecessor of the international law, understood the indigenous peoples as being sovereign on their territory.121 Francisco di Vitoria, for example, surmised that the doctrine of guardianship,122 as a further development of the idea of terra nullius, was not applicable in the case of Native Americans as the territory “newly” discovered had already been occupied by a people. In doing so, di Vitoria recognized de facto the independence and sovereignty of these peoples. In his lectures On The Indians Lately Discovered123 he reasoned that, according to the Law of Nations in general, territory that didn’t yet belong to someone starts belonging to those who conquer it. He continued that the territory of the Americas was not without possessor and so a possession could not be more justified than if Europe had been invaded by the Native Americans.124 Years later the doctrine of guardianship was also opposed by Hugo Grotius in his De iure praedae commentarius. During the 18th century, the work of Emmerich de Vattel started to bring first restrictions on the previously recognized independence. Even though, in general, he supported the idea of the

121 Based upon the notes taken during a class of Doris Farget on “Droit des autochtones”. 122 The doctrine of guardianship mainly says that Europeans are superior to indigenous peoples and thus the latter need to be “protected”. 123 Cf. Francisco di Vitoria, Reflectiones Theologicae XII-De Indis De Iure Bellis, Part II “On The Indians Late- ly Discovered”, Translation by John Pawley Bate, edited by Ernest Nys, London New York, 1964, Summary of the Second Section, available online at: http://www.constitution.org/victoria/victoria.txt (consulted 5.3.2012). 124 „Mais ces biens n’étaient pas sans propriétaires. […] Cependant, en lui-même, il ne justifie nullement la possession de ces territoires, pas plus que si les barbares nous avaient découverts”-Francisco di Vitoria cited after Morin ,L’usurpation (1997), p. 33 ; for more information on the subject see: Anaya, Indigenous peoples (2004), p. 16-19. 34

III. The right to self-determination of indigenous peoples in international and regional law sovereignty of indigenous peoples, he set limits to its application on hunting territories.125 That mainly because he judged this part of the indigenous populations to be lazy and to lead an idle life. In his treatise The Law of Nations, or the Principle of Natural Law, de Vattel developed the idea of a body of law concerned exclusively with states.126 Following this reasoning it became necessary for indigenous peoples to be regarded as nations or states in order to be able to enjoy rights as distinct communities.127 Apparently this approach made it more and more difficult for indigenous peoples to be considered as subjects of law due to their different perceptions of societal organization. As Anaya points out, the concept of the nation-state in the post-Westphalian sense is based upon a European comprehension of politics, whereas indigenous peoples have traditionally been organized by tribal or kinship ties.128

Nevertheless, at the end of the 19th century the tide started to turn towards an increasingly indigenous-friendly view, when, even before national courts, the idea of indigenous peoples as distinct communities was elaborated. Noteworthy examples of the about-face in former politics are the so-called Cherokee Cases129 of the United States Supreme Court. In the last of the three decisions, Worcester v. State of Georgia130, Judge Marshall stated that: “The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force […]”

2. Improvement and struggles in the 20th century Shortly after the creation of the League of Nations in 1923, first efforts were taken by different indigenous groups to fight for their right to self-determination on the international scene, yet at the beginning more defeats than victories had to be accepted. It was in 1923 that the Haudenosaunees, a group belonging to the Iroquois Indians, invoked the recognition of their sovereignty on the Canadian territory. For that purpose, a group of chiefs approached the League of Nations with a petition claiming their independence and its protection. Despite being supported by the Netherlands, their claim was not successful and never appeared on the agenda of the Council. Five years later the Haudenosaunees declared their independence and even tried to participate in the foundation of the United Nations in

125 Based upon the notes taken during a class of Doris Farget on “Droit des autochtones”. 126 Anaya, Indigenous peoples (2004), p. 20. 127 Cf. Ibid., p. 21. 128 For more information see: Morin, L’usurpation (1997), p. 55-61.; for a more detailed analysis of the mentioned periods, see: Panzironi Francesca, Indigenous peoples’ right to self–determination and development policy, Sydney, 2006, p. 11-44. 129 Johnson v. MacIntosh (1829), Cherokee Nation v. State of Georgia (1831), Worcester v. State of Georgia (1832). 130 U.S. Supreme Court, Worcester v. State of Georgia, 31 U.S. 515 (1832). 35

III. The right to self-determination of indigenous peoples in international and regional law

1945, a proceeding that unsurprisingly did not lead to the desired result.131 They may have failed; still their protest can be seen as a first step towards the final recognition of indigenous peoples as subjects in international law more than 20 years later. Also in 1923, Chief Deskaheh of the Iroquois Cayuga made his way to Geneva to find support for his claim for treaty rights of self-government. His case was even taken up by the General Secretary and supported by several states. Great-Britain, however, in arguing that the issue was an internal affair, blocked further actions.132 Just three years later, the Canadian Cayuga Indians133 raised their voice to file a suite for a compensation for violation of rights as well as the recognition as the “Cayuga Nation”. An international court, the US-Great Britain Arbitral Tribunal, ruled that Indian tribes such as the Cayuga Indians are not subjects of international law.134

Nevertheless, it seems that despite the wishes and will of indigenous peoples to speak up things were not made easy for them at the beginning of the 20th century and the number of court decisions denying their legal personality grew constantly.135 Change came during the 1970s: a report of the rapporteur of the Commission on Prevention of Discrimination and Protection of Minorities as the result of inquiries on the situation of indigenous peoples in international law brought special attention to the subject and proposed the adoption of a document that was specifically aimed to indigenous peoples as well as their land rights and human rights protection. He also insisted on the importance of the participation of the peoples in question. Furthermore, the distinction between minorities and indigenous peoples was made for the first time,136 a fact that helped a lot in the final recognition as subjects in international law. The work of the Commission laid the cornerstone for the UN Declara- tion on the Rights of Indigenous Peoples. But long before that, the ILO adopted its Conven- tion 107 on Indigenous and Tribal Populations, followed by Convention 169 in 1989. In 2002, a new institution was created in the cadre of the United Nations: the United Nations Permanent Forum on Indigenous Issues, composed of 16 experts (half of them nominated by the states, the other half by indigenous groups). Five Years later the UN Declaration on the Rights of Indigenous Peoples was born.

131 Cf. Morin Michel, L’usurpation (1997), p. 178f. 132 Cf. Notes taken during a class on “Droit des autochtones” by Doris Farget, see also: Thornberry, Indigenous peoples and human rights, Manchester, 2002, p. 82. 133 The Cayuga Indians are a group that settled in Canada after the American War of Independence. Even though Cayuga land was ceded to New York in a treaty of 1789, no money was given to them. 134 Cf. Bryant Michael J., Aboriginal Self-Determination (1992), p. 5, and Thornberry, Indigenous peoples (2002), p. 83. 135 E.g. Island of Palmas case, Legal Status of Eastern Greenland case. 136 Cf. Notes taken during a class on “Droit des autochtones” by Doris Farget. 36

III. The right to self-determination of indigenous peoples in international and regional law

Today, indigenous peoples’ status in international law has finally reached a satisfying status quo. Although not yet fully recognized as “peoples” in the international sense, they at least have the possibility to participate in the decision making process. Examples of their ongoing integration in the state shaped international society are the participation of indigenous peoples in the working groups for the UN Declaration or the fact that it is now possible for them to obtain the status as an observer in international organizations (the Saami Council for example sits in several institutions in Geneva).

B. Indigenous peoples’ rights in the UN system

Already in its Charter dating from the year 1946, the United Nations made self-determination a general principle to be taken into account when pursuing the goals of the organization.137 Another twenty years later this principle was expressed in its simplest form in the two Inter- national Covenants on human rights138 (1966) but it wasn’t until more than sixty years after its creation that the UN finally granted this right to indigenous peoples too.139 This chapter will provide a brief interpretation of Art 1 of the International Covenant on Civil and Politi- cal Rights as well as a more detailed analysis of the UN Declaration on the Rights of Indige- nous Peoples, taking into consideration the work of the Human Rights Committee, focusing on the indigenous peoples’ role in the monitory process, and the jurisprudence of the ICJ.

1. The International Covenant on Civil and Political Rights As of January 2012, nearly forty years after its entry into force, the ICCPR has 167 parties.140 The common para. 1 of Art. 1 of the Covenants reads as follows: “All peoples have the right of self - determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” An explanation regarding its scope is provided in paragraphs 2 and 3 according to which “all peoples may, for their own ends, freely dispose of their natural wealth and resources” while “the States Parties to the present Covenant, including those having responsibilities for the

137 Art 1.2 UN Charter states that one the purposes of the UN is “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”. 138 International Covenant of Civil and Political Rights and International Covenant of Economic, Social and Cultural Rights, both of 16 December 1966. 139 Carried out by Art 3 of the UN Declaration on the Rights of Indigenous Peoples. 140 United Nations Treaty Collection, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en, (consulted 22.1.2012). 37

III. The right to self-determination of indigenous peoples in international and regional law administration of Non - Self - Governing and Trust Territories, shall promote the realization of the right of self - determination”. Thornberry identifies three questions141 when interpreting Art. 1, among them asking who the peoples contemplated in the text are. Still this particular question remains open and it can be assumed that this had been done intentionally since also in the General Comments adopted by the HCR is this aspect passed over.142 Moreover, the HCR tends to refuse inquiries initiated by minorities or indigenous peoples and in doing so avoids the problem.143 Nevertheless, during the drafting process Western states supported the idea that the right to self-determination as protected in Art. 1 should not apply only to colonial countries but be made a universal principle,144 as formulated by François Roche “malgré les doutes, il est clair aujourd'hui que la thèse de l'autodétermination a des ramifications à l'extérieur des situations de décolonisation et tend vers une positivité plus élargie”.145 Thus, it can be said that although indigenous peoples have never been explicitly included in the circle of beneficiaries, at least they have not been explicitly excluded either.

When speaking about self-determination in this context, the question regarding the modalities of exercising self-determination arises as well. Therefore, para. 2 of Art. 1 is of high importance when applying this article on indigenous peoples, as for many of them the right to their own resources is accompanied with their comprehension of self-determination. For this aspect of the right, the HCR has no objection on its direct application on indigenous peoples.146 Hence, reality differs from theory. For example, in its concluding observations concerning Canada in 1999,147 the Committee expressed its concern that “the State party has not yet implemented the recommendations of the Royal Commission on Aboriginal Peoples”. Moreover, it emphasizes that “that the right to self-determination requires, inter alia, that all peoples must be able to freely dispose of their natural wealth and resources and that they may not be deprived of their own means of subsistence”.148 Partial answers to these recommenda-

141 Cf. Thornberry, Indigenous peoples (2002), p. 125. 142 Human Rights Committee, 21st Session, General Comment No. 12, 1984 (HRI/GEN/1/Rev.9 (Vol.1)). 143 A critical point of view can be found in: Boev Ivan, Le droit des peuples à l’autodétermination en droit des minorités ? in: L’Europe en formation, no. 317 (2000). 144 Cf. Panzironi Francesca, Indigenous peoples’ rights (2006), p. 80. 145 Roch François, Réflexions sur l'évolution de la positivité du droit des peuples à disposer d'eux-mêmes en dehors des situations de décolonisation in: Revue de Québécoise de Droit International, Vol. 15 (2002), p. 33- 100, para.6. 146 Cf. Thornberry, Indigenous peoples and human rights (2002), p. 127. 147 Human Rights Committee, 65th Session, Concluding observations of the Human Rights Committee: Canada, 1999 (CCPR/C/79/Add.105); the full report is contained it: Human Rights Committee, Fourth periodic reports of states parties due in 1995: Canada, 1997 (CCPR/C/103/Add.5). 148 Ibid., para. 8. 38

III. The right to self-determination of indigenous peoples in international and regional law tions can be found in the 5th Periodic Report on Canada.149 However, although the Govern- ment of Canada acknowledges the request for information concerning Canada’s concept of self-determination as it is applied to aboriginal peoples, no such information can be found in the report.150

In general, difficulties when it comes to the implementation of Art. 1 arise from the fact that the state parties, especially at the time of the creation of the ICCPR, were and are not yet ready to allow a wider interpretation of the concept of peoples. There might well be consensus that the Covenant applies not only to peoples under colonial rule; as long as there are not clear and universal provisions demanding the application on indigenous peoples, states will always find ways to interpret it in their own restrictive ways. Critics of this lack of will can also be found in the suggestions of the Permanent Forum on Indigenous Issues, stating that state parties should be requested to report on their compliance with their obligations regarding the right of self-determination of indigenous peoples.151 a. The Optional Protocol to the International Covenant on Civil and Political Rights Normally, the right to self-determination as guaranteed by Art. 1 of the Covenant would not allow for individual claims as it is incorporated as a collective right, which means it has to be invoked by a people as such. Therefore, the Optional Protocol I is of particular importance as, in theory, it opens the way for individuals or groups to plead for recognition of a violation of the ICCPR. The Optional Protocol to the International Covenant on Civil and Political Rights152 was adopted and opened for signature by the same act of the United Nations General Assembly that adopted the Covenant itself; they both entered into force in 1976. Notwithstanding this does not mean that every state being party to the Covenant is also party to the Optional Proto- col I.153 According to its Art. 1, every state “recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party […]”

149 Human Rights Committee, Fifth Periodic Report: Canada, 2004 (CCPR/C/CAN/2004/5), para. 181. 150 Cf. Ibid., para. 8.; for further information concerning the aboriginal self-government in international law with focus on Canadian Aboriginal peoples see: Berg Brad, Introduction to Aboriginal Self-Government in Interna- tional Law: An Overview in: Saskatchewan Law Review, Vol. 26 (1992). 151 Permanent Forum on Indigenous Issus, Report on the 9th Session, 2010 (E/2010/43-E/C.19/2010/15), para. 42 152 Optional Protocol to the International Covenant on Civil and Political Rights of 16 December 1966 (GA Res- olution 2200A (XXI)). 153 Human Rights Committee, 94th Session, General Comment No. 23, 2008 (CCPR/C/GC/33), para. 1. 39

III. The right to self-determination of indigenous peoples in international and regional law

All the same, a petition may only be admissible if the petition of the appellant fulfills two conditions: all available domestic remedies are exhausted and the communication is not anon- ymous.154 The individual having submitted the communication is generally known as the “author”.155 Following the text of Art. 1, a group of indigenous peoples as such would be qualified to pursue a claim before the Committee or it could even be possible for one person alone, e.g. a chief, to speak on behalf of his nation or group. Therefore, the Committee’s concept of a “victim” has to be taken in consideration when measuring the chances of such a communication to be admitted in the end. According to the Committee, a victim has to be someone to actual or imminent adverse effects from the alleged violation.156 A third person must no plead without written proof that the victim has given authority to do so. Moreover, if a violation of a group’s right is at stake, each member of the group has to be a victim. In the case A.D. v. Canada157 the alleged victim was said to be the Mikmaq Tribal Society whilst the claim had been submitted by A.D., the Grand Captain of the Society. The communication was considered inad- missible due to the lack of proof that A.D. had been authorized by every member to act upon their behalf. Yet, even the case of admissibility of a claim submitted by an indigenous group, the Commit- tee’s decisions on the right of self-determination are for several reasons very restrictive.158 b. Monitoring mechanisms Apart from the possibility of individuals to benefit from OP 1, the HRC submits Concluding Observations on the observance of the ICCPR. However, the question arises as to what extent the implementation of the recommendations contained in the observations is anything more than a hollow promise. According to the HCR, the follow-up procedure after submitting a record appears to be very promising and the initial reactions of the state parties to the follow- up procedure have been very encouraging.159

154 Cf. Ibid., Art 2, 3; an explanation of the steps having to be taken in order to successfully submit an individual complaint under the Optional Protocol 1 with regard to indigenous peoples can be found in the Leaflet No. 4, prepared by the United Nations, available at: http://www.ohchr.org/Documents/Publications/GuideIPleaflet4en.pdf (consulted 26.2.2012). 155 Cf. General Comment 23, para. 6. 156 Thornberry, Indigenous Peoples (2002), p. 121. 157 The Mikmaq tribal society v. Canada, Communication No. 78/1980 of 30 September 1980 (UN Doc. Supp. No. 40 (A/39/40)), para. 5.2. 158 See IV.B.3. at p. 53 for a more detailed analysis of the committees work illustrate by the case of Bernard Ominayak. 159 Cf. Office of the High Commissioner, Fact Sheet No. 15: Civil and Political Rights: The Human Rights Committee (Rev.1), p. 20, available at: http://www.ohchr.org/EN/PUBLICATIONSRESOURCES/Pages/FactSheets.aspx (consulted 5.3.2012) 40

III. The right to self-determination of indigenous peoples in international and regional law

Art.s 41 to 43 of the ICCPR enable the resolution of conflicts between state parties over the violence of a state’s obligations under the Covenant. Within this procedure, state parties are given the possibility of resolving the dispute on their own before the matter is passed on to the Committee. All the same, the access to this procedure is granted to states only, and thus, indigenous peoples would have to find support from a foreign government to speak on their behalf when reporting a violation of obligations c. Comment In theory, Art. 1 of the Covenant, as well as its Optional Protocol, could be seen as a valuable instrument when pursuing the goal of strengthening the right of self-determination of indigenous peoples. In practice however it proves much less effective due to the lack of binding provisions which apply directly to indigenous peoples as well as the restrained attitude of the Human Rights Committee concerning the definition of “peoples” under Art. 1 and its dis- missive decisions when the right is invoked. Still, it should be considered that there might be a reason why it took the UN another forty years to adopt the UN Declaration of the Rights of Indigenous Peoples and that this reason might well be the impossibility, on the international level, to do so earlier and not the general intention to damage indigenous peoples’ rights. The International Covenants are the most important human rights documents and ratified by more than 150 states. In comparison, ILO Convention 169 has been ratified by only 22 states willing to guarantee special rights to aboriginal peoples. It can be assumed that under the condition that the ICCPR would grant a specific right of self-determination to indigenous peoples (or that a general definition of “peoples” including indigenous peoples will be provided) the acceptance of the Covenant would have been far lower. Nevertheless, even if this might help the understanding as to why the text does not pronounce itself more clearly on the right of self-determination of indigenous peoples, for the groups in questions the Covenant remains more of a theoretical instrument than a real help.

2. The use of the right to self-determination in the jurisprudence of the ICJ Self-determination, as addressed in the UN Charter and the International Covenants, has definitely been a main issue on the UN agenda over the years; however, rare are those judgments which deal directly with the implementation of the right of self-determination, its scope or protection. As already briefly mentioned before, the ICJ tries to avoid the core of the subject in its jurisprudence. Instead of defining explicitly the beneficiaries of the right and what ex-

III. The right to self-determination of indigenous peoples in international and regional law actly it implies, the court’s opinions remain superficial and evasive. Moreover, it should be noted that claims of indigenous peoples for their right of self-determination have never been at stake at The Hague as the regulations concerning the capability to sue before the ICJ allow only states to be party in a process.160 Nevertheless, when talking about self-determination two decisions are worth to be noted as they describe very well the relation between the UN and the right of self-determination. a. The case concerning East Timor (Portugal v. Australia) East Timor became a colony of Portugal during the 16th century. In 1960 the General Assem- bly stated in its Resolution 1542161 that East Timor’s territories under the administration of Portugal were non-self-governing territories. Following internal conflicts and several Security Council resolutions, the GA conferred upon Portugal the power to administer East Timor and to ensure the free exercise of the right of self-determination.162 Later on, Australia recognized the de facto integration of East Timor in Indonesia and, by negotiating a treaty on a continen- tal shelf with the latter, violated in Portugal’s opinion the East Timor’s peoples’ right to self- determination. In his decision163 on the subject, the Court stated that: “Portugal's assertion that the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character, is irre- proachable”164

Still, one can find the Court’s opinion on who ought to benefit from the above named erga omnes right as restrictive: “For the two Parties, the Territory of East Timor remains a non-self governing territory and its people has the right to self-determination. Moreover, the General Assembly, which reserves to itself the right to determine the territories which have to be regarded as non-self-governing for the purposes of the application of Chapter XI of the Charter, has treated East Timor as such a territory.”165 This restriction arises from the fact that the ICJ makes a connection between a “non-self governing territory” and the right to self-determination. E contrario, the right in question would

160 Statute of the ICJ, Art 34. 161 General Assembly Resolution 1542 (XV), Transmission of information under Art. 73 e of the Charter, of 15 December 1960 (A/RES/1542(XV). 162 Security Council Resolution 384 (1975), East Timor, of 22 December 1975. 163 ICJ, Case concerning East Timor (Portugal v. Australia), Judgment of 30 June 1995, ICJ Reports (1995). 164 Ibid., para. 28. 165 Ibid, para. 31. 42

III. The right to self-determination of indigenous peoples in international and regional law not apply to a people (whatever the definition of the term might be) on a self-governing territory. b. The case concerning Western Sahara In its advisory opinion from 1995166, the ICJ treats the right of self-determination only indi- rectly whereas the interpretation of the term terra nullius is in the fore front. Still, some interesting remarks on who should benefit from this right are found. First, the Court mentions the Charter of the United Nations, Art. 1.2,167 which underlines the importance of the principle of equal rights and self-determination. In this context, the Court indicates that: “This purpose is further developed in Art.s 55 and 56 of the Charter. Those provisions have direct and particular relevance for non-self-governing territories […]”168 The Court then cites its Advisory Opinion of 21 June 1971 on The Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970)169 where again a connection between the development of non-self governing territories and self-determination can be found. To sum up, it can be said that the right of self-determination, as enshrined in the Charter, only applies to peoples under colonial rule or any other form of foreign rule which implies the existence of a non-self governing territory. To quote the words of Hector Gros Espiell, Special Rapporteur of the Sub Commission on Prevention of Discrimination and Protection of Mi- norities: “The right does not apply to peoples already organized in the form of a State which are not under colonial and non-self-governing territory, since resolution 1514(XV) and other United Nations instruments condemn any attempt aimed at the partial or total disrup- tion of the national unity and the territorial integrity of a country.” 170 However, with regard to its application on indigenous peoples an interesting point of view is expressed by Doris Farget who identifies the recognition of the right to self-determination to

166 ICJ, Western Sahara, Advisory Opinion of 16 October 1975, ICJ Reports (1975) (Western Sahara Advisory Opinion). 167 UN Charter, Art 1.2: To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples [...]. 168 Western Sahara Advisory Opinion, para. 54. 169 ICJ, Legal consequences for States of the continued presence of South Africa in Namibia(South West Africa) notwithstanding Security Council Resolution 276, Advisory Opinion of 21 June 1971, ICJ Reports (1971), para. 52: […]the subsequent development of international law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to all of them 170 Gros Espiell Hector, The Right of Self-Determination: Implementation of UN Resolutions, UN Doc. E/CN.4/Sub.2/405/Rev.1, para. 60. 43

III. The right to self-determination of indigenous peoples in international and regional law nomadic people in the advisory opinion.171 Under this angle the case concerning Western Sa- hara is of high importance as it would open the definition of “peoples” also to those populations that are not sedentary.

3. The HCR and claims for self-determination in practice: The case of Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada The obeying of the provisions set out in the Covenants is assured by the Human Rights Com- mittee172 which is, on the one hand, in charge for reviewing the reports of the state parties and for inter-state complaints173 and on the other has the ability to decide on individual complaints conferred upon it under the Optional Protocol I.174 Decisions of the Committee, however, are not of a legally binding nature as it acts not as a tribunal (when compared to e.g. the ICJ). All the same, one should not underestimate the power of a declaration as a human rights violator, a position in the world community that a state usually tries to avoid as it has a more than negative influence on the state’s reputation. Therefore, complaint procedures before one of the UN treaty bodies constitute an important part for the protection of human rights.

Regarding the right to self-determination, the work of the HRC is ambiguous as can be seen in the Ominayak case.175 Although, the Committee tries to ensure the protection of the right of self-determination and decides against Canada, it does so in using a detour.176 Bernard Ominayak is the Chief of the Lubicon Lake Band, a Cree First Nation living on the territory of Northern Alberta.177 In the Committee’s decision, the band is described as “a self- identified, relatively autonomous, socio-cultural and economic group”, whose members have “continuously inhabited, hunted, trapped and fished in a large area encompassing approximately 10,000 square kilometers in northern Alberta since time immemorial”.178 When Cana- da allowed expropriation of the band’s territory for the benefit of private investors, the Lubicon Lake Band decided to plead before the Human Rights Committee for violation of Art

171 Cf. Farget Doris, Le droit (2010), p. 4. 172 ICCPR, Art. 28. 173 Ibid., Art. 40, 41. 174 OP 1, Art. 1. 175 Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada, Communication No. 167/1984 of 10 May 1990 (CCPR/C/38/D/167/1984). 176 For more information, see: Thornberry, Indigenous peoples (2002), p. 128 and Anaya, Indigenous peoples and international law (2004), p. 254-258. 177 Official homepage: http://www.lubiconlakenation.com (consulted 24.1.2012). 178 Ominayak Case, para. 2.2. 44

III. The right to self-determination of indigenous peoples in international and regional law

1 of the ICCPR, as through the Indian Act179 and Treaty 8180 their right to continue their original way of life had been recognized. The band alleged that the Government of Canada has violated their right of self-determination and by virtue of that right to determine freely its political status and pursue its economic, social and cultural development, as well as the right to dispose freely of its natural wealth and resources. According to them, by allowing the expropriation of the territory and thus destroy- ing the environment, the band had been deprived of their right to dispose of their natural resources that are the basis for their lives. When it came to the admissibility of the claim, two problems had to be solved: first, is the Lubicon Lake Band qualified to act under Art. 1 ICCPR and secondly, if the answer to the first question was affirmative, was the communication as submitted by Ominayak a communication for breach of an individual right (as OP I only allows for communications of individuals that have been violated in their individual rights). Therefore, the case of Bernard Ominayak would have been a perfect opportunity for the Committee to pronounce itself on the questions of the beneficiaries of Art. 1 and on its application on indigenous peoples. Canada stated that the Lubicon Lake Band is not a “people” under Art. 1, as the band constitutes only one of 582 Indian bands in Canada. Moreover, the government made reference to the General Comments on Art. 1 which underline, in para. 1, the importance of the right of self-determination “for the effective guarantee and observance of individual human rights”181. Consequently, according to Canada, the Committee should declare the inadmissibility of the Lubicon Lake Band’s claim for the above mentioned reasons. The Committee avoided the problem relative to the definition of people by answering the second question first: “The Committee observed that the author, as an individual, could not claim under the Optional Protocol to be a victim of a violation of the right of self-determination enshrined in article I of the Covenant, which deals with rights conferred upon peoples, as such.”182 By denying the possibility to invoke Art. 1, there was no further need for interpretation of Art. 1 and its meaning of “peoples”. Still, the Committee decided against Canada in the end by reformulating the claim under Art. 27 and therefore ensured a remedy against the violation.

179 Indian Act (R.S.C., 1985, c. I-5). 180 Treaty 8 of 21 June 1899. 181 General Comment No. 12. 182 Ominayak Case, para. 13.3. 45

III. The right to self-determination of indigenous peoples in international and regional law

4. The UN Declaration on the Rights on Indigenous Peoples a. Historical background aa. The Work of the WGIP The adoption of the UN Declaration on the Rights of Indigenous Peoples in 2007 (hereinafter: the Declaration) was not just the final outcome of some working groups or several reports on the subject; it rather constitutes the result of a process that began more than four decades ago with the first reports on discrimination of indigenous peoples. Describing the whole development of indigenous peoples’ rights within the UN System would go beyond the scope of this work; moreover incorporating the whole background is not the aim of this paper. Instead, the focus will be on the events of the more recent history that allowed for the realization of the Declaration.183 1982 can be seen as a point of departure as it was in that year that the Working Group on In- digenous Populations was established by the Sub-Commission on the Prevention of Discrimi- nation and Protection of Minorities.184 After adopting two Declarations of Principles in 1984 and 1985, Erica-Irene Daes, Chairperson-Rapporteur of the WGIP, decided to focus more on standard-setting activities, a step that was appreciated by the other members of the WGIP as well as by the representatives of indigenous peoples attending the WGIP as observers.185 Dur- ing that phase, the use of the terms “indigenous peoples” was controversial as some members noted that “a new criteria establishing two different kinds of peoples should preferably not be introduced into international law”.186 Most indigenous peoples’ representatives emphasized the importance of the right of self-determination and going from there, the need to respect treaties concluded between states and them according to the principle pacta sunt servanda. However, not all government representatives were at ease with these demands: the observer of Canada, for example, expressed his concern over such proposals as for him, self- determination implied the right to secession which was not accepted by the Canadian government.187 Despite all differences, it should be noted that indigenous representatives were

183 A very detailed description of the origins of the Declaration can be found in: Åhrén Mattias/Eide Asbjørn/Minde Henry, The UN Declaration on the Rights of Indigenous Peoples. What made it possible? The work and process beyond the final adoption in: Gáldu Čála Journal of Indigenous Peoples, Vol. 4 (2007). 184 ECOSOC Resolution 1982/34, Study of the problem of discrimination against indigenous populations of 7 May 1982 (E/RES/1982/34). 185 Cf. Daes Erica-Irene, The UN Declaration on the Rights of Indigenous Peoples: Background and Appraisal in: Allen /Xanthaki (eds.), Reflections on the UN Declaration on the Rights of Indigenous Peoples, Oxford, 2011, p. 17. 186 Ibid., p. 18. 187 Cf. Ibid.,p. 21. 46

III. The right to self-determination of indigenous peoples in international and regional law granted almost equal rights in expressing their views.188 Here, the participation of indigenous NGOs is to mention as that way, indigenous representatives were given the possibility to participate in the drafting process. Even though the WGIP consisted of only five members, non- governmental organizations were entitled to participate in the working group as observers and thus it was ensured that subjects of international law others than states could represent their viewpoints as well.189

Following several meetings of the WGIP, the Chairperson-Rapporteur elaborated the first draft declaration entitled “Draft Universal Declaration on Indigenous Rights” in 1988. It was composed of 12 preambular paragraphs and six main parts; nonetheless the right of self- determination was not yet part of the text (instead, it is briefly mentioned in the preamble). To facilitate working, the WGIP divided into three drafting groups in 1990, Drafting Group II lobbying most for the right of self-determination.190 The members of the WGIP agreed on the final text191 in 1993, and the Sub-Commission adopted it after some amendments one year later (Draft Declaration as Agreed upon by the Members of the Working Group in its Elev- enth Session). When preparing the final text, the use of the term “indigenous peoples” was again on the agenda. For most of the representatives of indigenous peoples the term had mainly historical implications. For instance, Mr. Ted Moses, Chief of the Grand Council of the Crees, stated that they “had defined themselves as peoples since time immemorial”.192In general, the discussions of the year before were used as a base and one radical change was the incorporation of Art. 3193 on the right of self-determination. Two years later, Resolution 1995/32194 established an open-ended inter-sessional Working Group of the Commission whose task was to elaborate a draft declaration that could be adopted by the General Assembly later on. Consequently, it was also in this year that the Interna- tional Decade of the World’s Indigenous Peoples (proclaimed by the GA) began and lasted until 2004.

188 Cf. Xanthaki, United Nations Standards (2007), p. 102. 189 Cf. Eide Asbjorn, The Indigenous Peoples, the Working Group on Indigenous Populations and the Adoption of the UN Declaration on the Rights of Indigenous Peoples in: Charters Claire/Stavenhagen Rodolfo (eds.), Making the Declaration work: The United Nations Declaration on the Rights of Indigenous Peoples, Copenha- gen, 2009, p. 34. 190 Cf. Thornberry, Indigenous peoples and human rights (2002), p. 373. 191 Sub-Commission on Prevention of Discrimination and Protection of Minorities, 45th Session, Report of the Working Group on Indigenous Populations on its eleventh session (E/CN.4/1993/29, Annex I). 192 Ibid., para. 66. 193 Art. 3: Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 194 Commission on Human Rights Resolution 1995/32, Establishment of a working group of the Commission on Human Rights to elaborate a draft declaration in accordance with paragraph 5 of General Assembly resolution 49/214of 23 December 1994 (UN Doc. E.CN.4/Res.1995/32. 47

III. The right to self-determination of indigenous peoples in international and regional law ab. The Work of the CDWG Despite hard work and efforts, the CDWG did not succeed in drafting a declaration within the planned ten years, mostly due to delays of the delegations of several member states and various indigenous peoples’ representatives. Eventually, after having been adopted by the working group in its eleventh session, the text of the draft declaration was submitted to the Human Rights Council, which adopted it in its Resolution 1/2 of 2006. The Council, for its part, submitted the Resolution to the 61st session of the General Assembly. Before the adoption by the Third Committee of the GA could be carried out, Namibia proposed amendments to the draft declaration; moreover various states had revised the original text. After voting on the amendments, the draft declaration was adopted by Resolution 61/178 of the Third Committee. In doing so, it took note of the recommendation of the Human Rights Council and decided to conclude its consideration of the declaration before the end of its 61st session. Following discussions in the world community, the President of the GA appointed Hilario G Davide Jr. to undertake consultations on the subject in question and requested a report no later than mid-July 2007. After submitting his first report, eight member states, among them Aus- tralia, Canada and the Russian Federation, responded in writing a letter to Mr. Davide. They expressed their concern that it would only be possible for them to support the declaration if yet more amendments were adopted. With the objective to gain as broad support as possible, amendments were discussed in eight areas, concerning 16 articles, among them self- determination, self-government, land, and resources.195

Against all odds, the United Nations Declaration on the Rights of Indigenous Peoples was born in 2007, when the General Assembly adopted its historic resolution A/61/295 on Sep- tember 13th. Whilst 143 member states casted an affirmative vote, only four were against and eleven abstained. Still, it is discouraging to see those four that voted against the Declaration (Australia, Canada, New Zealand and the United States) are states with a considerable number of indigenous peoples. b. Concept, ironies and application Having in mind the importance of a legal instrument like the Declaration and considering its impact on the world community it has not been an easy task for those involved in the drafting

195 Cf. Daes, The UN Declaration (2001), p. 34f. 48

III. The right to self-determination of indigenous peoples in international and regional law process to decide on what exactly the Declaration should be. Many indigenous organizations emphasized that the document should not merely be a repetition of rights laid down in other instruments but rather a reflection of existing progressive law concepts.196 Also, when it came to its force, ideas ranged from a legally binding instrument to minimum rights or an only po- litically binding force with “great moral” obligations.197 With regard to the final version of the Declaration it certainly contains more than just political standards even if in default of jurisprudence the scope of its legal force has not yet shown its true face. Moreover, it cannot be overlooked that the Declaration does not provide a definition of its beneficiaries, namely indigenous peoples. There is no general explanation as to the “why” as during the whole process beyond the adoption the delegations did not agree on whether to include a definition or not. One counter-argument was that the term “indigenous peoples” was not universally applicable and therefore would always exclude certain regions, as the complexity of such a definition would make it impossible to cover all existing situations.198 The observer of Switzerland, for example, was of the opinion that there were enough elements available to understand the term without defining it.199 On the other hand, several delegations were not comfortable with a declaration without definition. Japan supported the idea of using the definition provided by José Martinéz Cobo, whereas China came up with its own, new definition.200 The observer of the ILO noted that the ILO Conventions had encountered several problems in its application due to the lack of a definition.201 In view of its content, one can classify the protected rights as follows: individual-related human rights (Articles 1-9, right to self-determination, non-discrimination, protection against assimilation, right to life), cultural and linguistic rights (Articles 10-16, 24, 31 right to practice cultural traditions, protection of history and language, right to establish their own media), participation rights (Articles 18 and 19) and land rights (Articles 26-28, right to lands, territories and resources originally occupied by indigenous peoples). Furthermore, the Declaration

196 Cf. Commission on Human Rights, 52nd session, Report of the Working Group established in accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995 (UN Doc. E/CN.4/1996/84), para. 24. 197 Cf. Ibid., para. 22. 198 Cf. Ibid., para. 28 and 30. 199 Cf. Commission on Human Rights, 53rd session, Report of the working group established in accordance with Commission on Human Rights resolution 1995/32 (UN Doc. E/CN.4/1997/102), para 46. 200 Cf. Ibid., para.106. Indigenous peoples should be defined as follows: “(i) the original peoples inhabiting certain countries or geographical regions and their descendants when these countries and regions have been colonized, conquered, occupied and ruled by colonial settlers from other countries, and these peoples retain some or all of their own social, economic, cultural and political institutions; (ii) peoples inhabiting exclusively certain geographical regions with a unique style of living, and thus regarded as indigenous by other inhabitants and Governments of the countries in which they live, and they identify themselves as indigenous”. 201 Ibid., para. 50. 49

III. The right to self-determination of indigenous peoples in international and regional law contains the right to develop their economic, political and social institutions202 and the right to the protection of the environment.203 Particularly with regard to the definition problem, Art. 9 and 33 should be mentioned: while the first one codifies the right to belong to an indigenous community, the latter states that “indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions”. Together these provisions can be read as to pave the way to the criterion of self-identification which would allow for the members of indigenous peoples themselves to decide whether or not they belong to an indigenous group. However, this approach might hold the potential to entail group pressure or denial of individual rights.204

Another important aspect is related to the distinction between individual and collective rights. As already Art. 1 recognizes rights to indigenous peoples, the Declaration favors collective rights.205 However, discussions on this subject have been long and controversial. The government representative of France, for example, was of the opinion that collective rights do not exist in international human rights law and therefore had reservations with the establishing of collective rights, as following his reasoning, human rights are only individual rights.206 Still, this point of view is not fully accepted as several international instruments do contain collective rights. Other states expressed their concern to a possible imbalance of individual and collective rights, as they feared that many collective rights would not be applicable to individuals.207 To outweigh this fears some articles were reformulated in the final version of the text in order to grant these rights explicitly to individuals.208 Indigenous representatives welcomed this approach too, although for many of them individual and collective rights are connected: “Indigenous peoples need the recognition and protection of their collective rights. When human rights are attacked, when racial discrimination is practiced, it is directed against groups. Individuals suffer the pain, that is true. But they suffer because they are perceived by their attackers as members of a group.”209

202 Art. 20. 203 Art. 29. 204 Cf. De Oliveira Godinho Fabiana, Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions in: Max Planck Yearbook of the United Nations Law, Vol. 12 (2008), p. 251. 205 Cf. Xanthaki, United Nations Standards (2007), p. 107. 206 E/CN.4/1997/102, para. 108. 207 Ibid., para. 109-113. 208 E.g. Art. 6: Every indigenous individual has the right to a nationality. 209 Representative of the Grand Council of the Crees of Quebec, cited after: Thornberry, Indigenous peoples (2002), p. 379. 50

III. The right to self-determination of indigenous peoples in international and regional law

Despite of the overall agreement that the UN Declaration on the Rights of Indigenous Peoples constitutes a step forward, H. Patrick Glenn identifies three ironies regarding the declaration in general.210 The first one criticizes the use of international law as such: indigenous peoples always had their own rules and their own legal system, attached to land, earth and the circle of life. Later on, they also started to apply also the law of the nation-state within which they resided. In the early days of public international law, application of this law was limited to those groups that did not meet the formal requirements of statehood at that time. Generally, indigenous peoples were regarded as “inferior” and most of all, not subjects to international law. Taking into account this historic aspect, using international law in aid of indigenous peoples can be seen as ironic. The second irony lies in the existence of a declaration itself, namely due to its form. For indigenous peoples, since time immemorial, neither writing nor codified rules were of particular importance and thus establishing rights for indigenous peoples in a written declaration remains ironic. The same holds true when regarding language and legal concepts of which many indigenous peoples now have (inevitable) become experts; in this context the term of “mental colonization” is used. Last but not least, Glenn links irony and opposition. Australia, Canada, New Zealand and the United States originally voted against the Declaration even though it had been these states that raised the issue of indigenous rights at the beginning, notably because of the high number of indigenous groups on their territories.

Thanks to the fact that the Declaration has had an impact on international or national law it could become a useful instrument in litigation. For both fields, Art. 42 enshrines a general request addressed the state parties as well as UN bodies to ensure the full application provisions of the Declaration.211 To this day the Declaration has been used by regional tribunals as well as by domestic courts as several indigenous peoples invoked it when pleading their case.212 Nevertheless, there has not yet been a claim explicitly based upon the Declaration before an international tribunal and, thus, the real legal value of the instrument remains unclear.

210 Cf. Glenn Patrick H., The Three Ironies of the UN Declaration on the Rights of Indigenous Peoples in: Al- len/Xanthaki (eds.), Reflections (2011), p. 172f. 211 Art. 42: The United Nations, its bodies, including the Permanent Forum on Indigenous Issues, and specialized agencies, including at the country level, and states shall promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration. 212 E.g. Saramaka v. Suriname (Inter-American Court of Human Rights), Mitchell v. M.N.R. (SCC) (using the text of the Draft Declaration). 51

III. The right to self-determination of indigenous peoples in international and regional law c. Art. 3 articulating the right to self-determination Art. 3 of the Declaration survived the process beyond the adoption that lasted for more than two decades despite all discussions and disagreement. However, even now the doctrine is in two minds about the nature of Art. 3: new right or mere codification of already existing international law?213 While this question remains not easily answered, one thing can be underlined for definite: Art. 3 is more of an achievement to indigenous claims to self-determination that any other provision before. Its scope may well not yet be clearly defined, Art. 3 brings an end to the ongoing struggle of indigenous peoples to benefit from Art. 1 ICCPR, as now, black on white, indigenous peoples do have the right to self-determination (and therefore not only colonial peoples or peoples organized as states).214 The final Art. 3 constitutes a compromise between the states’ unwillingness to accept a right to self-determination, that could possibly challenge the territorial integrity of existing states,215 and the position of indigenous peoples not allowing any restrictions on their interpretation of the principle:216 “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.”

As Helen Quane already notes, what meaning is to the right of self-determination is more than difficult to pin down and also with regard to the Declaration there is nearly no guidance as to what Art. 3 means in practice and how it should be implemented.217 When trying to define the

213 Helen Quane for instance states that “it is anything but a codification” (Quane Helen, The UN Declaration on the Rights of Indigenous Peoples: New Directions for Self-Determination and Participatory Rights in: Al- len/Xanthaki, Reflections (2011), p. 259.), while Mattias Åhrén indicates that “one might think that in this area, the Declaration creates new law. But again, […] this is not the case” (in: Åhrén /Eiden/Minde, The UN Declara- tion (2007), p. 125.) 214 On indigenous peoples having the same right to enjoy self-determination as other peoples, see: Anaya S. James, The Right of Indigenous Peoples to Self-Determination in the Post-Declaration Era in: Char- ters/Stavenhagen (eds.), Making the Declaration work (2009), p. 185. 215 See f.ex.: UN Doc. E/CN.4/1997/102 para. 332.: Canada (Canada accepted a right of self-determination for indigenous peoples which respected the political, constitutional and territorial integrity of democratic states), UN Doc. E/CN.4/1999/82 para. 40.: USA (the United States of America did not believe that international law accorded indigenous groups everywhere the right of self-determination, which had been interpreted to include the right to separate or secede from the rest of the society), UN Doc. E/CN.4/2000/84 para. 62.: Australia (the representative of Australia reaffirmed his delegation’s position that it was unable to accept the inclusion of the term “self-determination” in the draft declaration because for many people it implied the establishment of separate nations and laws). 216 See f.ex. UN Doc. E/CN.4/1997/102 para. 326. (The observer for the New South Wales Aboriginal Land Council stressed that Art. 3 was one of the cornerstones of the declaration and that it must be retained unaltered or the declaration would be worse than meaningless) or UN Doc. E/CN.4/2001/85 para. 71 (It would be discriminatory to proclaim self-determination as a right of all peoples, and at the same time to limit its application with respect to indigenous peoples). 217 Cf. Quane, The UN Declaration (2011), p. 269. 52

III. The right to self-determination of indigenous peoples in international and regional law scope of the right within the frame of the Declaration, Art. 3 has to be read in conjunction with Art.s 4 and 46. The first provides information on autonomy which is naturally linked to self-determination, while the latter codifies in spite of everything a certain limitation. Art. 4 asserts that: “Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.” Thus, in general terms it seems rather obvious that the Declaration clearly favors the internal form of self-determination, an approach that has mostly been welcomed by indigenous representatives as well.218 The original Draft Art. 31 (now Art. 4) illustrates this even better as in its version the text said that “indigenous peoples, as a specific form of exercising their right to self-determination, have the right to autonomy or self-government” and so clarifies that the aspect of self-determination granted by the Declaration is that of autonomy. For some participants self-determination included the idea of a new relationship between states and indigenous peoples through more direct and meaningful participation and through granting autonomy.219 Anyhow, including explanatory provisions on the areas of autonomy went too far for many of them,220 even though such a list would have been an immense aid for the interpretation and appliance of the Declaration. The part where for example culture, religion and education were listed had been deleted. For indigenous peoples too the explicit listing would have been useful to ensure the states’ commitment, but, on the other hand, they feared that an ex- haustive list would nevertheless restrict their right to self-determination.221 Apart from autonomy, another important aspect helping to bring to life an effective self- determination is the possibility to retain and strengthen their distinct legal systems and customs.222 This mainly because non-indigenous lawyers perseveringly refuse to accept that there can be two legal orders within one state.223 Provisions guaranteeing the respect of distinct legal systems help improving self-determination by allowing a different form of law that may be more suitable to indigenous peoples’ beliefs and traditions to emerge and to be used in litigation.224

218 Compare f. ex. UN Doc. E/CN.4/1997/102 para. 323: The observer of the Mejlis Crimean Tatar People stated he supported the integrity of the Ukrainian state and that secession would be dangerous to all peoples. 219 Cf. Quane, The UN Declaration (2011), p. 270. 220 Cf. UN Doc. E/CN.4/2004/81, para. 79. 221 E.g. UN Docs E/CN.4/2003/92 and E/CN.4/2004/81. 222 Art.s 5 and 34 of the Declaration. 223 Cf. Åhrén /Eiden/Minde, The UN Declaration (2007), p. 126. 224 An interesting outline of this issue can be found in: Borrows John, Indigenous Legal Traditions in Canada in: Journal of Law & Policy, Vol 19. (2005), p. 167-220. 53

III. The right to self-determination of indigenous peoples in international and regional law

Yet, another pillar of the interpretation of Art. 3 would be the idea of effective participation in public and political life. States made reference to that form of self-determination during the drafting process: “The right of self-determination includes the right of indigenous peoples to participate at all levels of decision-making in legislative and administrative matters and the maintenance and development of their political and economic systems.”225 “Self-determination is seen now by many as a right which can continue to be enjoyed in a functioning democracy in which citizens participate in the political system and have the opportunity to have input in the political processes that affect them.”226 However, the right to participation as a form of self-determination can differ in scope and intensity. Quane227 distinguishes four categories of the Declaration’s ideas on participation: The first category reaffirms the right to participate fully in the political, economic, social and cultural life of a state. The second protects the right to maintain and develop distinct political, legal, economic, social and cultural systems and institutions. In category three the idea that indigenous institutions act as a nexus between states and indigenous peoples can be found. Finally, the fourth category envisages not only the participation of indigenous peoples in the establishment of a new decision-making process but also their participation regarding the creation of such a process. However, Quane even develops another typology of the provisions on participation as a form of self-determination. She classifies them as a) provisions as an expression of the right of self- determination of the entire population of the state, b) provisions as an expression of the right of self-determination of indigenous peoples and c) provisions as an expansion of the right to participate in public life.228 When it comes to category b), as this is the category of particular interest for this chapter, another question arises: how to solve conflicts that occur between the right to self- determination of indigenous peoples within a state and the right to self-determination of the people organized as this state? Unfortunately, the Declaration fails to answer this question, although reading the preamble would suggest negotiation and consultation to be a way of rec- onciling any problems that may arise. Another, though rather ineffective way, to iron out difficulties would be the “traditional” approach that each party invokes its right to self-

225 Statement of Norway to the CHR inter-sessional working group 1999 cited after: Foster Caroline E., Articu- lating the right of self-determination in the Draft Declaration on the Rights of Indigenous Peoples in: European Journal of International Law, Vol. 12 (2001), p. 151. 226 Statement of Canada to the CHR inter-sessional working group 1999 cited after: Ibid., 227 Cf. Quane, The UN Declaration (2011), p. 273. 228 For the detailed analysis of these classifications, see: Quane, The UN Declaration, p. 275-284. 54

III. The right to self-determination of indigenous peoples in international and regional law determination, claiming that this wish should be respected and finally hoping that the other party will accept that.229 Considering this aspect of Art. 3 there is a strong need for a coherent and efficient problem-solving mechanism.

Finally, the interesting interaction of Art.s 3 and 46 and para. 17 of the preamble should be noted. The latter declares as follows: “Bearing in mind that nothing in this Declaration may be used to deny any peoples their right to self-determination, exercised in conformity with international law.” while Art. 46 states that: “Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.”

Taking into account these two provisions one may ask, to what extent the right of self- determination as guaranteed by Art. 3 exists at all? Regarding the preamble it is rather obvious that the right to self-determination finds its limits within the frame of international law. Yet, without going into detail, the provisions remain open for each state’s interpretation on what is or is not in conformity with international law. Art. 46 suggests that the right of self-determination in the Declaration may be restricted if it could threaten the territorial integrity of a state. Therefore, there still is a difference between the right of self-determination recognized to indigenous peoples and the one recognized to all “peoples” by Art. 1 ICCPR. Even if, as mentioned previously, most indigenous peoples do not claim a right to secede, not all participants agreed with the text of Art. 46. The observer of Chile, for example, stated that it was necessary to spell out the scope of [draft] article 45 [now Article 46], owing to its impact on the interpretation of the right to self- determination”230 and the representative of the World Council of Indigenous Peoples expressed his concern that even if Art. 3 did not encourage secession, in connection with Art. 45 it would explicitly discourage secession, a right that was nevertheless unconditional and should not be limited.231 However, it is also suggested to read Art. 46 in line with the 1993

229 Cf. Quane, The UN Declaration (2011), p. 277. 230 E/CN.4/1997/102 para. 119. 231 E/CN.4/1997/102 para. 327. 55

III. The right to self-determination of indigenous peoples in international and regional law

Vienna Declaration and Programme of Action232 which says that nothing should encourage any action that would dismember or impair the territorial integrity or political unity of states respecting the principles of equal rights and self-determination and thus, have a government representing the whole people belonging to the state without discrimination.233 Therefore, the reason of “territorial integrity” cannot be invoked arbitrarily but the provision applies only to states respecting the right to self-determination anyway so that the application of the right by indigenous peoples would be justly demanded.234 d. Monitoring mechanisms Already in 2004, three years before the adoption of the UN Declaration on the Rights of In- digenous Peoples, at the 22nd session of the Working Group, the establishment of an international body where indigenous peoples could make complaints was suggested.235 The same subject had been discussed at the 2nd session of the Permanent Forum on Indigenous Issues one year before.236However, no such body was created in the aftermath of the adoption. In its final version, the only provision regarding the implementation of the Declaration is Art. 42 that states: “The United Nations, its bodies, including the Permanent Forum on Indigenous Issues, and specialized agencies, including at the country level, and States shall promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration” So far, this only means that the UN treaty bodies, as well as national courts, should render decisions in conformity with the Declaration. Specific allegations of violations are normally reported by indigenous delegates at the annual session of the Permanent Forum on Indigenous Issues, but there is no procedural mechanism that then deals with these allegations. The Forum also receives allegations between sessions but due to their high number a lot of them remain unanswered. In this context, experts pointed

232 UN Doc. A/CONF.157/23 233 Vienna Declaration and Programme of Action, I. 2: In accordance with the Declaration on Principles of Inter- national Law concerning Friendly Relations and Co-operation Among states in accordance with the Charter of the United Nations, this shall not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states conduct- ing themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind. 234 Cf. Cisnero Gustavo Torres/Montes Adelfo Regino, The United Nations Declaration on the Rights of Indige- nous Peoples: the Foundation of a New Relationship between Indigenous Peoples, States and Societies in: Char- ters/Stavenhagen, Making the Declaration work (2009), p. 151. 235 Sub-Commission on the Promotion and Protection of Human Rights, 56th session, Report of the Working Group on Indigenous Populations on its twenty-second session (UN Doc. E/CN.4/Sub.2/2004/28) para. 58. 236 See: Press Release HR/4675 from 22 May 2003 on the 17th Meeting of the 2nd Session of the Permanent Fo- rum on Indigenous Issues. 56

III. The right to self-determination of indigenous peoples in international and regional law out that there is a need to develop measures in order to handle the allegations and proposed a specific mandate of the Special Rapporteur237 for the rights of indigenous peoples or mechanisms including the UN treaty bodies.238 The lack of a specific monitoring system leads us back to Art. 42. It has to be borne in mind that the UN Declaration is not a treaty and thus, no matter if a state follows a monist or a du- alist approach regarding the status of international law, it is not legally binding in national law (only if it is incorporated into domestic law; until now this has only been the case in Bolivia only). Nevertheless, Art. 42 codifies the most important way of protecting rights of the Decla- ration and its use by national courts or regional tribunal will probably be the most significant way of protection indigenous rights under the Declaration. Until now, the most famous decision on the binding nature of the Declaration has been rendered by the Supreme Court of Be- lize only one month after its adoption in 2007, stating that it embodies general principles of international law, that in the same way are not to be disregarded: “I am therefore, of the view that this Declaration, embodying as it does, general principles of international law relating to indigenous peoples and their lands and resources, is of such force that the defendants, representing the Government of Belize, will not disregard it.”239 Even if the Declaration is not given the same legal status as a treaty, it always can be used when interpreting national or regional law and hopefully this will be enough to ensure an effective protection of the rights granted under the Declaration. e. Comment The UN Declaration on the Rights of Indigenous Peoples represents a milestone for indigenous peoples all over the world who, for the first time, were given the possibility to participate in the drafting of a declaration dealing with their rights and who could experience the progress made during the years before the adoption. When it comes to the right of self- determination, on the first glance it may look as if Art. 3 says it all. In reality Art. 3 may well be the most sensational article, as it explicitly grants the right to self-determination to indigenous peoples, its real content, however, arises only in conjunction with many other provisions

237 The Special Rapporteur was appointed in 2001 by the Commission on Human Rights in order to report on human rights situations of indigenous peoples and to address cases of alleged violations, available at: http://www.ohchr.org/EN/Issues/IPeoples/SRIndigenousPeoples/Pages/SRIPeoplesIndex.aspx (consulted 26.2.2012). 238 Cf. Report on the International Expert Seminar On The Role Of UN Mechanisms With Specific Mandate Regarding The Rights Of Indigenous Peoples, Madrid, 4-6 February 2009, available at: http://www.ohchr.org/Documents/Issues/IPeoples/SR/ReportExpertSeminarMadrid.pdf (consulted 26.2.2012) 239 Supreme Court of Belize, Aurelio Cal, et al. v. Attorney General of Belize (Claims 171 and 172 of 2007), judgment of 18 October 2007. 57

III. The right to self-determination of indigenous peoples in international and regional law of the Declaration that help defining and distinguishing its scope. When one hears self- determination, one often thinks of secession as the most extreme form of self-determination. Yet, as already noted, Art. 46 restricts the right of self-determination in the Declaration to its internal interpretation and prohibits the right to secede. Thus, self-determination can rather express itself in the form of autonomy, self-government, the right to natural resources and the protection against their exploitation, own legal systems and cultural traditions and land rights. Still, the symbolic importance of Art. 3 should not be overlooked: after years of neglect in the world community, there finally is a legal instrument recognizing the claims of indigenous peoples. It may not be perfect; hence the Declaration probably is the best possible compromise under the given circumstances of hundreds of states and indigenous peoples, all with different ideas and wishes. Only time will tell if the Declaration will prove effective in litigation or not. What is certain is that its efficiency depends largely on the states willingness to make it work. As Victoria Tauli-Corpuz said in her statement from 13th September 2007: “Effective implementation of the Declaration will be the test of commitment of States and the whole international community to protect, respect and fulfill indigenous peoples collective and individual human rights.”240 f. Canada’s position towards the Declaration To completely understand why Canada decided to oppose the adoption of the Declaration, one would need a deeper knowledge of Canadian constitutional law and its interpretation. Howev- er, not all of that can be discussed here; for the purpose of this chapter it is sufficient to bear in mind several factors: Aboriginal rights in Canada are protected by Art 35 of the Constitution Act 1982241, namely as collective rights. Human rights and freedoms in general are being addressed for all individuals in the Canadian Charter of Rights and Freedoms.242 Self-determination for indigenous peoples is not an explicitly recognized right neither in civil nor in common law. The right to consultation as well as to free and prior consent has been introduced and interpreted by the Supreme Court in several decisions and is applied in a very restrictive way.243

240 Statement of Victoria Tauli-Corpuz , Chair of the UN Permanent Forum on Indigenous Issues on the occasion of the adoption of the UN Declaration on the Rights of Indigenous Peoples, 61st Session of the UN General As- sembly, 13 September 2007, New York. 241 The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, Art. 35. 242 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982. 58

III. The right to self-determination of indigenous peoples in international and regional law

During the drafting process, Canada’s government has set different actions in order to show its disregard towards the Declaration, among them the failure to consult indigenous peoples and accommodate their concerns, the refusal to meet and discuss Canada’s concerns, the lobbying of states against the Declaration and the misleading of other states.244 In context, with the aforementioned factors, Canada’s arguments against the Declaration were the following: Certain provisions of the Declaration could be interpreted to go beyond existing jurisprudence of the SCC regarding the collective rights of Aboriginal peoples pursuant to section 35 of the Constitution Act 1982. Moreover, it was stated that the Declaration might provide a different way of balancing individual rights and public interests in case of a violation and therefore would not assure the same flexibility as the test of Art. 1.245 Also, the Declaration’s approach to self-determination is out of step with the Constitution and its provisions concerning self-government do not respect the Canadian idea of hierarchy between national and aboriginal laws in certain situations as well as the financial responsibilities for indigenous governments. In Canadian jurisprudence a method of identifying the duty to consult as well as a way of jus- tifying infringements has been found and certain provisions of the Declaration go against that (e.g. some articles could be interpreted as to give indigenous peoples a right to veto against measures affecting them).246 However, it is worth noting that only the Conservative government of 2006 mobilized against the Declaration whilst the three opposition parties (Liberal, New Democratic Party and Bloc Québécois) were in support of the project.247

Nevertheless, things changed four years later: in a press release from November 12, 2010248 the Ministry of Foreign Affairs and International Trade announced that from that day on Can- ada formally endorsed the Declaration and that the President of the UN General Assembly

243 See: Delgamuukw v. British Columbia, [1997] 3 S.C.R 1010; Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388 (all SCC). 244 Cf. Joffe Paul, UN Declaration on the Rights of Indigenous Peoples: Canadian Government Positions Incom- patible with Genuine Reconciliation in: National Journal of Constitutional Law, Vol. 26 (2010), p. 164f. 245 Charter of Rights and Freedoms, Art.1 (Test “Oakes” to identify violations of the constitution). 246Aboriginal Affairs and Northern Development Canada, Canada's Position: United Nations Draft Declaration on the Rights of Indigenous Peoples, http://www.aadnc-aandc.gc.ca/eng/1100100014078/1100100014079 (consulted 28.1.2012). 247 See also: Neve Alex: Shame on Canada for opposing the UN Indigenous Peoples Declaration in: The Lawyers Weekly, Vol. 28 (2008). 248 Foreign Affairs and International Trade Canada, Canada Endorses the United Nations Declaration on the Rights of Indigenous Peoples, http://www.international.gc.ca/media/aff/news-communiques/2010/361.aspx?- lang=eng&view=d, (consulted 28.1.2012). 59

III. The right to self-determination of indigenous peoples in international and regional law would be advised of the official endorsement by Canada’s Ambassador to the United Nations. In the official support statement it says: “In endorsing the Declaration, Canada reaffirms its commitment to build on a positive and productive relationship with First Nations, Inuit, and Métis peoples to improve the well-being of Aboriginal Canadians, based on our shared history, respect, and a desire to move forward together.” 249 What the motives were behind this change of mind remains an unanswered question; numerous government initiatives for Aboriginal peoples on education, economic development, housing, child and family services, access to safe drinking water, and the extension of human rights protection and matrimonial real property protection to First Nations on reserves seemed to have been decisive factors.

C. ILO Conventions 107 and 169

In an intern note to the staff on the occasion of the adoption of the UN Declaration on the Rights of Indigenous Peoples250 from 2007, published by the Equity Team of the International Labor Standards Department, the ILO251 resumes its policy towards indigenous peoples as follows: full implementation of ILO Standards as well as all possible efforts to be made in order to ensure a satisfying work for indigenous peoples. In fact, already 90 years ago the ILO was one of the first international organizations aware of the special situation de facto in law and showing interest in improving the situation of these groups. It was as early as during the 1920s that the organization published studies concerning indigenous workers;252 its work culminated finally in the Conventions 107253 (1957) and 169254 (1989), which are up until now the only legally binding documents in international law specializing on the rights of indigenous peoples.

249 Foreign Affairs and International Trade Canada, Canada’s statement of support on the United Nations Decla- ration on the Rights of Indigenous Peoples, http://www.international.gc.ca/indig-autoch/un_declaration_nov- 2010_onu.aspx?lang=eng&view=d, (consulted 28.1.2012). 250Cf. International Labour Organization, ILO standards and the UN Declaration on the Rights of Indigenous Peoples - Information note for ILO staff and partners, http://www.ilo.org/indigenous/Resources/Publications/WCMS_100792/lang--en/index.htm (consulted 14.1.12). 251 The ILO is an UN specialized agency responsible for drawing up and overseeing international labour standards. 252See: Martínez Cobo José R., Study of the Problem of Discrimination Against Indigenous Populations, UN Doc E/CN.4/Sub.2/1982/2/Add1/Cf. Xanthaki, United Nations Standards (2007), p. 49. 253 International Labour Organization, Convention 107 - Convention concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries 1957, coming into force 2.6.1959. 254 International Labour Organization, Convention 169 - Convention concerning Indigenous and Tribal Peoples in Independent Countries 1989, coming into force 5.9.1991. 60

III. The right to self-determination of indigenous peoples in international and regional law

1. Convention 107 Preparation work for the Convention 107 started at the beginning of the 1950s, when the ILO first began to widen its examinations concerning indigenous workers and led to the ratification of the Convention by 27 states in 1957. Convention 107, although being replaced by the one of 1989, remains in force for the 18 states that have not yet ratified Convention 169.255 Yet, even among those states that ratified the Convention from its beginnings, the binding character of the document was subject to discussion and more than one state expressed its concern or even explicit disapproval. The government representative of Canada, for example, announced that his government was clearly opposed to an international instrument in this field of law: “The countries concerned with the problem could more usefully ask the United Nations or its specialized agencies […]”256 According to article 1.1 of the Convention it applies to: “(a) members of tribal or semi-tribal populations in independent countries whose social and economic conditions are at a less advanced stage than the stage reached by the other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; (b) members of tribal or semi-tribal populations in independent countries which are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of con- quest or colonisation and which, irrespective of their legal status, live more in conformity with the social, economic and cultural institutions of that time than with the institutions of the nation to which they belong.”

It is interesting to note that the authors of the document assumed a certain “inferiority” of populations living in tribes whose economical and social standards were considered to be of a less advanced stage than those of a modern society; however, this view did not count for indigenous populations as such.257 Still this definition gave way to misunderstandings when it came to the real field of application; several states, among them the USA and Canada, pointed

255 For more information, see: International Labour Standards Departement, Indigenous and Tribal Rights in Practice. A Guide to ILO Convention No. 169, Geneva, 2009. 256 International Labour Conference, 40th Session, Report VI (1), Geneva, 1956, p. 9. 257 Cf. Thornberry, Indigenous peoples (2002), p. 327. 61

III. The right to self-determination of indigenous peoples in international and regional law out that such “backward” populations would no longer exist in their respective countries and therefore the field of application was restricted on their territories.258 Noteworthy in this context is also the choice of the term “populations”, might it be relativized by Convention 169 or not, which, following an interpretation by the sense of the word, would cut off every eventual possible right to self-determination as this right is only guaranteed to peoples, if it is guaranteed at all. Convention 107, as can already be seen after a brief study, focuses rather on the integration of the existing so-called populations than on the possibility of giving certain autonomy to several groups. For this purpose reference is made to the obligation of the ratifying states to permit a step-by-step incorporation in the existing national society, which should primarily be realized by non-discrimination and the implementation of protection measures259. Other provisions deal more or less with aspects of substantive nature of indigenous peoples’ rights, such as ownership and land rights.260 Even though some indigenous peoples have had the possibility of participating in the drafting process, not all of their claims were given way by the authors of the final version of the Convention;261 instead one is content with a general reference to indigenous customary law.262 Convention 107 may well provide provisions especially for indigenous peoples; law enforcement still remains a more than difficult task due to the lack of direct access to the control body of the ILO, with the regular supervisory process being the only way of getting right at the end.263

2. Convention 169 As early as in 1982 Martinez Cobo, Special Rapporteur of the UN Economic and Social Council, underlined the dubiousness of the effectiveness of Convention 107: „[…] more than 25 years after its adoption, there is little difference between countries which are and which are not bound by it […]”264 As a solution he proposed better adapted and more detailed provisions and a focus on independence and self-determination instead of integration. Four years later first discussions on a

258 Cf. Erueti Andrew, The International Labour Organization and the Internationalisation of the Concept of Indigenous Peoples in: Allen/Xanthaki (eds.), Reflections (2011), p. 100f. 259 Convention 107, Art. 2. 260 Ibid, Art 11: The right of ownership, collective or individual, of the members of the populations concerned over the lands which these populations traditionally occupy shall be recognized. 261 Cf. Courtemanche Alexandre, Le développement normatif et institutionnel relatif aux peuples autochtones en droit international au regard des fondements de leurs revendications politiques: le droit à l'autodétermination comme théorie unificatrice? Montréal, 2010, p. 12. 262 Convention 107, Art. 7. 263 Cf. International Labour Standards Departement, Monitoring indigenous and tribal peoples’ rights through ILO Conventions. A compilation of ILO supervisory bodies’ comments 2009-2010, Geneva, 2010, p. 4f. 264 Coby-Study, UN Doc E/CN.4/Sub.2/1983/21/Add 8, p. 44. 62

III. The right to self-determination of indigenous peoples in international and regional law partial revision of the old convention emerged which became more and more tangible until the year 1988.265 First steps towards the recognition of the positions of indigenous peoples and their autonomy were made by letting them participate as observers in the meeting of experts and the general conference of 1988.266 Moreover, the Workers Group (as one of the three official voting groups) often met with indigenous NGOs267 and consulted them on directions in voting and thus indigenous peoples were more directly involved.268 Since 1989 22 states ratified Convention 169, which can only be done without reservations. Apparently, the first real progress of the Convention with regard to the right of self- determination and in connection with the status of indigenous peoples in international law when compared to its predecessor lies in its Art. 1 which, although following the wording of the old convention, avoids certain pejorative elements: “1. This Convention applies to: (a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community […] (b) peoples in independent countries who are regarded as indigenous […]” Here it is important to mention that the definition, as provided by articles 1, is the result of long and detailed discussions concerning the signification and interpretation of the word „peoples“ as well as on the use of alternative terms. The finally accepted term had been proposed by the International Labor Office and was subsequently approved by 26 states as well as several experts on the subject.269 Two amendments were required by Sweden and Cana- da270 as according to them it would, on the one hand, be as sufficient to adopt the term “populations” already used in Convention 107; alternatively they identified a need to provide an explication to the signification of the word “peoples” in the convention if this should be the term adopted in the end.271 But even those states that accepted the proposed term in general did not agree unanimously on its interpretation: the USA explained to understand the term in question as being meant in the sense of “tribal governments” in the way they are accepted by

265 Cf. Thornberry, Indigenous peoples (2002), p. 339 and Courtemanche, Le droit à l’autodétermination (2010), p. 23. 266 Cf. Xanthaki, United Nations Standards (2007), p. 68. 267 Indigenous NGOs are for example the Indigenous World Association, the International Work Group for In- digenous Peoples or the American Indian Law Alliance. 268 Cf. The Participation of Indigenous Peoples in the United Nations System's Political Institutions, lecture by Professor Dr. Erica-Irene A. Daes at the Castan Centre for Human Rights, 27 May 2004, available at: http://www.hreoc.gov.au/about/media/speeches/social_justice/un_political_institutions.html (consulted 20.3.2012). 269 Cf. Xanthaki United Nations Standards (2007), p. 71. 270 In the end Canada chose not to ratify the convention with reference to contradictions to elements of the national justice system. See also: Morin, L’usurpation (1997), p. 184. 271Cf. Xanthaki, United Nations Standards (2007), p. 71. 63

III. The right to self-determination of indigenous peoples in international and regional law the US federal government. Portugal’s interpretation followed, in certain ways, the position of Canada and underlined that the text should not open to claims relative to the right of self- determination.272 The final result of the debate was the addition in Art. 1.3: “The use of the term peoples in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law.” This formulation then met with the claims of the indigenous peoples on recognition of a status and also the fears of the ratifying states. Still this constitutes a progress for the concerned indigenous peoples, as underlined by Xanthaki: “The language implies recognition of the right to self-determination, even though the qualification excludes important aspects of it.“273 Although not being recognized explicitly, some provisions can still be read in a manner to give way to at least some form of autonomy. For example, it is pointed out that indigenous peoples have to be given the possibility to exercise control over their economical, social and cultural development.274 Art.s 6 and 7 of the Convention are to be regarded as key articles and serve as a base for the rest of the document.275 The authors of the guide on the use of Conven- tion 169 underline explicitly the importance of consultation and participation whose main field of application lies at first glance on the relation between state and indigenous peoples. Another progress, in comparison to Convention 107, apart from the recognized rights can be seen in the consideration of the general wish of indigenous peoples to be allowed to decide on their own on their affiliation and identification in itself.276 To be able to realize the right of self-determination in the end, it is at first necessary to grant the beneficiaries the right to decide themselves if, and in the affirmative, to which group they belong and how these groups can be distinguished. Every dissociation or definition of a people that is forced from the outside without taking into account its point of view can never lead to an effective guarantee of autonomy which is in the end characterized by the fact of having the possibility to speak for one’s self.

272 Cf. International Labour Conference, 75th Session, Partial Revision Report VI (2), Geneva, 1988, p. 13 and Thornberry, Indigenous peoples and human rights (2002), p. 343. 273 Cf. Xanthaki, United Nations Standards (2007), p. 71. 274 Convention 169, Art. 7 275 Cf. International Labour Standards Departement, Guide, p.59. 276 Convention 169, Art. 1.2: Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups. 64

III. The right to self-determination of indigenous peoples in international and regional law

3. Monitoring mechanisms The ILO Constitution277 obliges each country that has ratified a convention to annually report on the situation of the implementation, that is to say on the measures taken to give effect to the provisions. The first report must be submitted one year after ratification and can be followed by subsequent reports with a limited content. The ILO bodies responsible for the su- pervision of the reports are the CEACR and the CAS of the International Labour Confer- ence.278 The first is made up of 20 members who comment on the submitted reports in two forms: Observations (focusing on long-standing cases) and Direct Requests (demanding more detailed information on a subject).279 Moreover, in case of a state’s failure to fulfill obligations three kinds of complaint procedures are available. Firstly, employers or worker organizations can make representations under Art. 24280 of the ILO Constitution, claiming that a state has failed to observe a ratified convention. Secondly, complaints under Art. 26281 of the ILO Constitution can be filed by one member state against another regarding the way a Convention is being applied, by a delegate to the International Labour Conference on the observance of a ratified Convention by a state and by the Governing Body on its own initiative. The third possibility are complaints to the Commit- tee of Freedom and Association.282 However, indigenous peoples do not have direct access to the ILO supervisory bodies which diminishes the applicability for them. Nevertheless, several possibilities exist to allow the integration of indigenous peoples in the ILO’s standard-setting and monitoring process. If they wish to participate in ILO meetings they can do so as representatives of workers or em- ployer’s organization or of a NGO on the ILO Special List283 of Non-Governmental organizations.284 Moreover, indigenous peoples can send verifiable information such as a court deci-

277 ILO Constitution, Art. 22. 278 Cf. International Labour Standards Departement, Guide, p. 179 279 http://www.ilo.org/global/standards/applying-and-promoting-international-labour-standards/committee-of- experts-on-the-application-of-conventions-and-recommendations/lang--en/index.htm (consulted 24.2.2012) 280 Art. 24: In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communi- cate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit. 281 Art. 26.1: Any of the Members shall have the right to file a complaint with the International Labour Office if it is not satisfied that any other Member is securing the effective observance of any Convention which both have ratified in accordance with the foregoing Art.s. 282 Cf. International Labour Office, ILO Convention on Indigenous And Tribal Peoples, 1989 (No. 169):A Man- ual (2003), p. 82. 283 Indigenous NGO currently on the Special List are the Indigenous World Association, the International Work- ing Group for Indigenous Affairs, the World Council of Indigenous Peoples (dissolved), the Four Directions Council and the Saami Council (http://www.ilo.org/public/english/bureau/pardev/civil/special_list.htm consulted 24.2.2012). 284 Cf. Ibid., p. 84. 65

III. The right to self-determination of indigenous peoples in international and regional law sion or a new law directly to the ILO or ally with trade organizations which can raise the issue for them. Still, the lack of direct access forced indigenous peoples to find innovative ways to report their concerns to the ILO: In 1993, the Government of Norway submitted its first report on Convention 169. The Sami Parliament disagreed with this report and informed the government of their points of critic, requesting that its views would be incorporated in the report. The government refused to do so and the Sami Parliament notified the ILO thereof, which then criticized the fact that the government’s report did not contain any information on the views of the Sami Parliament. This incident made the government reach an agreement with the Sami Parliament in order to establish a new method of co-operation concerning reports submitted to the ILO.285 Furthermore, in countries where the legal force of ratified treaties is the same as of national law (or higher), Convention 169 can be invoked before national courts.286

4. Comment The work of the ILO in relation to the rights of indigenous peoples cannot be judged either in a positive or negative way. Remarkable is surely the fact that, with the Conventions 107 and 169, for the first time legally binding instruments entered into force and that they also under- lie a monitory system, may it be specifically formed or not. Just as positive is the 1957 progressive approach to give to the indigenous peoples their own convention to preserve their rights and to protect them; after all it took the UN another fifty years until with the UN Decla- ration on the Rights of Indigenous Peoples a roughly as equal instrument of protection was implemented.

With view to the right to self-determination another progress can be seen in the paradigm shift from one convention to the other. While this right didn’t yet exist in Convention 107, already in the run-up to the work on Convention 169, one was aware of the problematic of self- determination and that this problem had to be dealt with in one way or the other. Neverthe- less, the realization through the negative affirmation in Art. 1.3 casts a cloud over the success on great lengths. Only counterbalance constitutes the fact that, after all, the indigenous peo-

285 Cf. International Labour Standards Departement, Indigenous and Tribal Rights in Practice. A Guide to ILO Convention No. 169, Geneva, 2009, p.81; Ten years later, in conformity with the agreement, the Sami Parlia- ment directly reported to the ILO Committee of Experts on a special issue (the Finnmark Act). This approach was highly welcomed by the ILO as it significally strengethens the supervisory mechanisms. 286 Member states where ILO Convention 169 by ratification has the same rank as national law are Argentina, Bolivia, Columbia, Costa Rica, Ecuador, Honduras, Mexico, Nepal, Netherlands, Paraguay, Peru, Spain and Venezuela. 66

III. The right to self-determination of indigenous peoples in international and regional law ples are being called “peoples” as well as the acceptance of the importance of auto- identification. This can be regarded as the first achievement against the skepticism of several governments as such a description is the basic requirement for the recognition of the right to self-determination. However, even after the ratification of the conventions, the right to self- determination remains more an idea than a legitimate right. To sum up, the success of the Conventions 107 and 169 lies probably only in the fact that they bring attention to the rights of indigenous peoples and raise attention to problems for which now, more than 20 years later, solutions are beginning to be found. A similar observation can be found in the work of Anaya: “Convention No. 169 can be seen as a manifestation of the movement towards respon- siveness to indigenous peoples’ demands through international law, and, at the same time, the tension inherent in that movement.“287

D. International regional protection of indigenous peoples’ rights

1. The OAS and the ADRIP Under the point of view that a high percentage of the world’s indigenous peoples live on the territories of the member states of the Organization of American States, the importance of the inter-American system of human rights protection should not be underestimated. The OAS comprises all thirty-five independent states of the Americas288 and was born in 1948 in Bogo- tá with the signature of the Charter of the OAS.289 Its essential purposes are democracy, human rights, security and development,290 whose protection is assured by the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights. Unfortunately, for many years, self-determination has not been one of the key issues in the Inter-American system. Neither the Charter of the OAS nor the American Convention on Hu- man Rights or the American Declaration on the Rights and Duties of Men mentions the right to self-determination. Due to the lack of a specific legal instrument for indigenous peoples, the Inter-American Commission has no special mandate to deal with indigenous issues, but

287 Anaya, Indigenous peoples (2004), p.59. 288 Antigua and Barbuda, Argentina, Barbados, Belize, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Cuba, Commonwealth of Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname, The Bahamas, Trinidad and Tobago, United States of America, Uruguay, Venezuela. 289 Entered into force in 1951. 290 As further defined in Art. 2 of the Charter. 67

III. The right to self-determination of indigenous peoples in international and regional law instead they are handled within the regular procedure.291 One way to at least partially remedy the lack of standard-setting instruments dealing with indigenous peoples, are the country reports of the Commission, that has, upon its own initiative, developed a practice to gather information on human rights situations, in particular countries, and to present them in special reports. The aim of these reports is to evaluate the conditions faced by indigenous peoples and to make recommendations in order to ensure a progressive interpretation and application of the norms included in the human rights documents of the OAS.292

The hope remains that an American Declaration on the Rights of Indigenous Peoples will constitute a further step towards an effective protection of indigenous peoples’ rights. Adopt- ed in 1997, the Inter-American Commission published for the first time a proposed American Declaration on the Rights of Indigenous Peoples.293 Although Art. XV of the proposed Decla- ration mentions the right to self-determination, in this first draft the right to self-determination cannot yet be found. Up until now there have been 13 meetings of negotiations in the point of consensus of the Working Group, where member states representatives and now also indigenous people’s representatives take part in the discussions.294 However, when establishing the Working Group in 1999, indigenous participation was limited to the extent that their observations and suggestions may be considered.295 Unsurprisingly, this approach was not approved by the indigenous peoples who demanded stronger participation rights, also in the light of the ongoing process towards the UN Declaration where they were given the same possibility to participate as the states. Two years later, efforts were made to facilitate the access of indigenous peoples to the meetings through establishing a specific fund and giving them a stronger position in discussions.296 During the first years of the drafting the adoption of the American Declaration seemed to be easier to achieve as the one of the UN Declaration, mainly because the participating countries shared common history and similar legal approaches. Hence, this evaluation had to be reversed as it quickly turned out that those states opposing the UN Decla- ration were vehemently opposing the American Declaration as well.297 Finally, in 2007, Can-

291 Cf. Thornberry, Indigenous Peoples (2002), p. 273. 292 Cf. Anaya, Indigenous Peoples (2004), p. 233. 293 Inter-American Commission on Human Rights, February 26 1997, 1333rd Session, 95th Regular Session (OAS Doc. CP/doc.2878/97). 294 General information on the drafting process as well as a summary of the meetings can be found on the website of the Department of International Law of the OAS: http://www.oas.org/dil/indigenous_peoples.htm (consulted 5.2.2012). 295 OAS General Assembly Resolution AG/RES. 1610 (XXIX-O/99), para. 3. 296 OAS General Assembly Resolution AG/RES. 1780 (XXXI-O/01), para. 3-5. 297 Cf. Rodriguez-Pineiro Luis, The Inter-American System and the UN Declaration on the Rights of Indigenous Peoples: Mutual Reinforcement in: Allen/Xanthaki (eds.), Reflections (2011), p. 477. 68

III. The right to self-determination of indigenous peoples in international and regional law ada as well as the United States decided to exclude themselves from the search for a final version of the American Declaration, reserving themselves the possibility to give their (dis)agreement to the final adoption.

The work on the Declaration is not yet finished and negotiations are still being carried out at the time of writing. The most recent meeting of the Working Group was the 13th Meeting of Negotiations in the Quest for Points of Consensus being held at Washington in January 2011.298 In the records of this meeting,299 self-determination is mentioned as follows: “Article III: [Within the states, the right to self-determination of the indigenous peoples is recognized, pursuant to which they can define their forms of organization and promote their economic, social, and cultural development.]” However, reference is made to New Compendium of Proposals for the Phase of Review of the Draft American Declaration on the Rights of Indigenous Peoples300 where the proposed language for this article can be found. Another indication that the inclusion of self-determination poses as big a problem as during the adoption of the UN Declaration is the “Classification of Provisions that could facilitate consensus”301 which distinguishes three groups of provisions: texts on which consensus has been reached or that have been approved, texts where consensus could be reached easily, texts where consensus could be reached with some difficulty and complex texts, with Art. III to be found in the latter. During most of the time of the drafting history, the participants had differing opinions when it came to the scope of the right to self- determination. Brazil and Mexico understood it to be the ability to develop and freely exercise their political, economic, social and cultural organization compatible with the organizational structure and judicial organization of a state.302 Indigenous peoples indicated that “the terms ‘people’ and ‘self-determination’ could not be separated“ and that “self-determination was a

298 The XIV Meeting of Negotiations in the Quest for Points of Consensus is going to take place between April 16 and April 20 2012 in Washington D.C. 299 Working Group to Prepare the Draft American Declaration on the Rights of Indigenous Peoples Thirteenth Meeting of Negotiations in the Quest for Points of Consensus, Record of the current status of the draft American Declaration on the Rights of Indigenous Peoples, March 20 2011 (OEA/Ser.K/XVI /DADIN/doc.334/08 rev. 6. corr. 1). 300 GT/DADIN/doc.276/06 rev. 4 corr. 1. 301 OEA/Ser.K/XVI GT/DADIN/doc.329/08 rev. 4. 302 Draft American Declaration On The Rights Of Indigenous Peoples –Working document comparing the original draft of the Inter-American Commission On Human Rights, proposals by the States and by the indigenous representatives, as well as the proposed draft by the Chair Of The Working Group to prepare the Draft American Declaration On The Rights Of Indigenous Peoples, 9 January 2002 (OEA/Ser.K/XVI GT/DADIN/doc.53/02), p. 9. 69

III. The right to self-determination of indigenous peoples in international and regional law right of indigenous peoples, while sovereignty pertained to the state.”303 The United States emphasized the internal right to self-determination while some indigenous groups favored a listing of areas of self-determination such as autonomy and self-government but also culture, religion or education.304

When comparing the UN Declaration and the American Declaration at its current version, there is little difference between the provisions concerning self-determination:305 Art. III of the American Declaration speaks of self-determination within a state that allows the indigenous peoples their choice of organization; Art. 3 of the UN Declaration grants the right to determine the political status. When it comes to restrictions of this right, in the American Declaration it finds its limits in the sovereignty of states, while in the UN Declaration it has to be exercised in conformity with international law. Despite different formulations there probably will not be a huge difference neither in the scope nor in the utility of the provisions. In general, an advantage of the American Declaration can be seen in its high level of con- creteness and internal organization when compared to the UN Declaration’s long and often repetitive structure. Furthermore, the American Declaration addresses some issues that are not covered by the UN Declaration, such as the situation of peoples in “voluntary isolation” or the explicit affirmation of the state’s duty to recognize “fully the juridical personality of indigenous peoples”.306

2. Monitoring mechanisms The negotiations on the final text of the ADRIP are not yet finished; with regard to its applicability the most recent version of the Draft says: “The states shall promote, with the full and effective participation of the indigenous peoples, the adoption of the legislative and other measures that may be necessary to give effect to the rights included in this Declaration.”307

303 Ibid., p. 11. 304Cf. Ibid., p. 15 and 39. 305 A full comparison of the declaration can be found in: Table comparing the Draft American Declaration On The Rights Of Indigenous Peoples and the United Nations Declaration On The Rights Of Indigenous Peoples, 14 March 2008 (OEA/Ser.K/XVI GT/DADIN/doc.317/07 rev. 1). 306 Cf. Rodriguez-Pineiro Luis, The Inter-American System (2011), p. 480f. 307 Working Group to Prepare the Draft American Declaration on the Rights of Indigenous Peoples Thirteenth Meeting of Negotiations in the Quest for Points of Consensus, Record of the current status of the draft American Declaration on the Rights of Indigenous Peoples, 20 March 2011 (OEA/Ser.K/XVI /DADIN/doc.334/08 rev. 6. corr. 1), Art. XXXI para. 2. 70

III. The right to self-determination of indigenous peoples in international and regional law

Thus, the ADRIP does not provide an own monitoring system either. On the contrary, to have any legally binding effect at all implementing measures have to be taken by the state parties in order to transform the provisions into national law.

3. The work of the Inter-American Commission on Human Rights The Inter-American Commission on Human Rights is an autonomous body of the OAS that was created in 1959 and consists of seven members. Its work rests on three main pillars, namely the individual petition system, monitoring of the human rights situation in the member states, and the attention devoted to priority thematic areas.308 a. The Report on the situation of human rights of a segment of the Nicaraguan population of Miskito origin An illustrative case before the IACHR is the case of the Miskito and other Indians living in the Atlantic Coast region of Nicaragua,309 which had been incorporated within the Nicaraguan state after a series of events during the 19th century, but without prior consultation of the Am- erindians. With them three groups were concerned: the Miskito, the Mayangna and the Rama, all of them having to live at the margins of society in the aftermath of the incorporation. Fur- thermore, although retaining their indigenous identities, they were forced to accept government structures that complicated their free development as distinct cultural communities. Af- ter a government change in 1979, the indigenous communities began to claim their right to self-determination that they had been deprived of earlier and demanded political autonomy for parts of the Atlantic Coast region which led to a civil war. Finally, in 1983, the Indians pled their case before the IACHR.310 The Commission, however, stated that the Miskito Indians could not benefit from the right to self-determination as it considered them to only be an ethnic group: “The present status of international law does recognize observance of the principle of self-determination of peoples, which it considers to be the right of a people to independently choose their form of political organization and to freely establish the means it deems appropriate to bring about their economic, social and cultural development. This

308 For more information on the IACHR see http://www.oas.org/en/iachr/mandate/what.asp (consulted 5.2.2012). 309 Inter-American Commission on Human Rights., Report on the Situation of a Segment of the Nicaraguan Population of Miskito Origin, OAS Dec. OEA/Ser.L/V.II.62, doc. 10 rev. 3. 310 Cf. Anaya, Indigenous Peoples (2004), p. 114. 71

III. The right to self-determination of indigenous peoples in international and regional law

does not mean, however, that it recognizes the right to self-determination of any ethnic group as such.”311 Still, even as the Commission had to acknowledge the unequal treatment during the time of the incorporation, it suggested a new political order for the Indians as a kind of remedy as they had de facto been denied the right to self-determination. After this first negative appraisal of the right of self-determination, the views of the IACHR have constantly evolved, using it primarily in the context of land claims and the right to property.312 b. The case of Saramaka v. Suriname The case of Saramaka v. Suriname313 is important for two reasons: on the one hand because it was the first time that the Commission referred to the right of self-determination in interpreting indigenous land rights under Art. 21 of the American Convention of Human Rights and on the other because for the first time, only several months after its adoption, the UN Declaration on the Rights of Indigenous Peoples had effectively been used in litigation. The facts were as follows: The Saramaka are a community of about 43 000 members on the territory of Suriname, who are not indigenous to the region they inhabit. Originally the Saramaka are descendants of an African population having been brought to Saramaka during colonial times. They were qualified to be a tribal community but for several reasons (mainly because of their comparability with aboriginal peoples) it was decided to treat them like indigenous peoples.314 As the Saramaka also had a specific relationship with the territory as such, they have the same right to use Art. 21 as indigenous peoples. In this case, the state authorized the exploitation of a part of the territories where the Saramaka lived which led to extensive pollution of natural resources. Moreover, Suriname decided to build a dam on Saramaka territory and therefore ordered them to be resettled elsewhere; in any of these cases the community had been consulted before. The Commission interpreted Art. 21 of the American Convention on Human Rights that reads as follows:

311 Report on the Situation of a Segment of the Nicaraguan Population of Miskito Origin, Part IIb, para. 9. 312 E.g.: Mayagna (Sumo) Awas Tingni Community. v. Nicaragua and Yakye Axa Indigenous Community. v. Paraguay, compare also: Shelton Dinah, Self-Determination in Regional Human Rights Law: From Kosovo to Cameroon in: The American Journal of International Law, Vol. 105 (2011), p. 71f. 313 Inter-American Commission on Human Rights, Saramaka People v. Suriname (Preliminary Objections, Mer- its, Reparations, and Costs), Judgement of 28 November 2007 (H.R. (ser. C) No. 172). 314 The Commission noted that they „share similar characteristics with indigenous peoples, such as having social, cultural and economic traditions different from other sections of the national community, identifying themselves with their ancestral territories, and regulating themselves, at least partially, by their own norms, customs, and traditions”, Saramaka v. Suriname, para. 79. 72

III. The right to self-determination of indigenous peoples in international and regional law

“Right to Property 1.Everyone has the right to the use and enjoyment of his property. The law may subor- dinate such use and enjoyment to the interest of society. 2.No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law. 3.Usury and any other form of exploitation of man by man shall be prohibited by law.” For the Commission, pursuant to Art. 21, states must respect the special relationship that members of indigenous and tribal peoples have with their territories and consequently have to guarantee members of those people the full and equal exercise of their right to the territories they have traditionally used and occupied.315 The Commission then used ILO Convention 169 and the International Covenants as an aid to interpret the article: Accordingly, by virtue of the right of indigenous peoples to self-determination recognized under said Art. 1, they may “freely pursue their economic, social and cultural development”, and may “freely dispose of their natural wealth and resources” so as not to be “deprived of [their] own means of subsistence.”316 Finally, it found that according to Art. 29(b)317 of the American Convention, the Court has to interpret the provisions of the Convention in a manner that does not restrict the enjoyment and exercise of the Covenants to a lesser degree than what is recognized in them. In doing so the Commission has found a way to apply the right to self-determination in the Inter-American System even though the right does not exist in the American human rights instruments.

As already briefly mentioned the case of the Saramaka is also interesting because the Inter- American Commission on Human Rights was one of the first bodies to cite the at that time newly adopted UN Convention. It used Art. 32 of the Declaration when addressing the right to free, prior and informed consent.318

315 Ibid., para. 91., emphasis added. The fact that this right only applies to territories that have been traditionally used and occupied could pose a problem when it comes to a definition of these terms. 316 Ibid., para. 93. 317 Art. 29(b) says that “No provision of this Convention shall be interpreted as restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any state Party or by virtue of another convention to which one of the said states is a party” 318 Ibid., para. 131 and 137. 73

III. The right to self-determination of indigenous peoples in international and regional law

E. Excursus: Customary international law

When discussing the indigenous people’s right to self-determination in the international context, one has also to take into account customary international law. The question therefore arises if and to what extent customary international law would protect the right to self- determination. In general, the emergence of customary international law requires a state practice and opinio juris.319 Consequently it is questionable whether the position to base the indigenous peoples’ right to self-determination (not the right to self-determination in general) upon customary international law can be reasonably supported as as far as can be seen up until now, there is only very little state practice concerning the right to self-determination of indigenous peoples. Moreover it cannot be said with certainty that there exists unanimity among the world community concerning the psychological element, that is to say a sense of obligation that acts taken by a state are legal and should become customary international law later on. One argument for that would be the negative votes of four states against the adoption of the UNDRIP.

However, two authors, Anaya and Wiessner, underline the possibility that opinio juris exists despite the non-adoption by Canada, the USA, New Zealand and Australia. For them, through participating in the process leading to the adoption of the UNDRIP and showing concern for indigenous peoples’ rights, “the four opposing states have demonstrated an opinio juris, a willingness to be bound if the provisions as finally formulated were in line with their detailed policy preferences.”320 Anaya also states that as core elements of the indigenous peoples’ rights are sufficiently confirmed they became common understandings of international law and thus customary international law.321 Voyiakis, on the other hand, criticizes this approach, arguing that the participation in a standard-setting exercise alone cannot be seen as prove that those four states agreed to be bound by the final document.322 Other aspects of customary international law concern the UN Declaration directly: the first approach is to support the viewpoint that by adopting the Declaration, the states expressed their opinio iuris with regard to several provisions and thus these provisions would be gener-

319 Cf. Simma Bruno, Das Völkergewohnheitsrecht in: Neuhold Hanspeter/Hummer Waldemar/Schreuer Chris- toph (eds.), Österreichisches Handbuch des Völkerrechts, Band 1, Wien (Mansche Verlags- und Universitäts- buchhandlung), 2004, p. 33. 320 Anaya S. James/Wiessner Sebastian, The UN Declaration on the Rights of Indigenous Peoples: Towards Re- empowerment“ available at: http://jurist.law.pitt.edu/forumy/2007/10/un-declaration-on-rights-of- indigenous.php (consulted 20.3.2012). 321 Cf. Anaya, Indigenous peoples (2004), p. 72. 322 Cf. Voyiakis Emmanuel, Voting in the General Assembly as Evidence of Customary International Law in: Allen/Xanthaki (eds.), Reflections (2011), p. 230. 74

III. The right to self-determination of indigenous peoples in international and regional law ally applicable as customary international law if state practice followed.323 In that case, it should be questioned whether this customary international law would not apply to the USA, Canada,324 Australia and New Zealand, following the persistent objector rule.325 The second approach is to say that the Declaration does not serve as an element of the crystal- lization of customary international law, but that the Declaration itself embodies principles of customary international law. This means on the one hand, that principles of customary international law concerning indigenous peoples’ rights already existed prior to its adoption and on the other hand, that through the incorporation in the Declaration, these principles are now of binding nature to all states, even those having opposed it at the beginning.326 No matter which way to choose, even in the case of supporting the existence of customary international law, this does not automatically mean that the right to self-determination would be on the list of provisions of the Declaration that form part of customary international law.

323 Cf. Ibid., 324 The government representative of Canada for example stated during a meeting of the General Assembly: “For clarity, we also underline our understanding that this Declaration is not a legally binding instrument. It has no legal effect in Canada, and its provisions do not represent customary international law” (GA Official Records, 61st session, 107th plenary meeting, UN Doc. A/61/PV.107). 325 This rule says that a state that persistently opposes a practice should not be bound by it in future. 326 Cf. Dorough Dalee Sambo, The Significance of the Declaration on the Rights of Indigenous Peoples and its Future Implementation in: Charters/Stavenhagen, Making the Declaration work (2009), p. 265. 75

III. The right to self-determination of indigenous peoples in international and regional law

F. Tables of comparison

1. Positive and negative aspects of the ICCPR, the UNDRIP, ILO Convention 169 and the Draft American Declaration on the Rights of Indigenous Peoples a. The International Covenant on Civil and Political Rights

Positive Negative Art. 1 grants the right to self- Incorporation of determination to “all peoples”, No definition of who are the the right to self- linked to social, cultural and eco- peoples addressed is provided determination nomic development Even if not explicitly said, in- All peoples (which at least makes a Scope digenous peoples are de facto discussion possible) excluded from Art. 1 No provisions explicitly putting Limits  limits to Art. 1 Even if legally binding, Art. 1 Legally binding instrument, 167 Legal Force is in practice not applicable to parties indigenous peoples No clear consequences of a negative Concluding observa- Concluding observations of the tion; HCR decisions tend to Monitoring HCR, state-to-state complaint pro- avoid the “peoples” question; cedure, Optional Protocol 1 formal requirements compli- cate the use of OP 1 for indigenous peoples b. The United Nations Declaration on the Rights of Indigenous Peoples

Positive Negative Incorporation of Art. 3 addresses self- the right to self- determination and takes up the Art. 46 determination wording of Art. 1 ICCPR No definition of indigenous peo- Scope Indigenous peoples ples Art. 46 which states that nothing in the Declaration may pave the Limits  way to secession as an exercise of self-determination

III. The right to self-determination of indigenous peoples in international and regional law

Approved through adoption by Legal Force Soft law 143 states Can be used as an interpretation No specific monitoring proce- Monitoring guide to national law dure; no supervisory body c. ILO Convention 169

Positive Negative Certain provisions give way to Incorporation of some elements of self- The right itself is not explicitly the right to self- determination, e.g. exercise con- mentioned Determination trol over their economical, social and cultural development Art. 1.3 brings restrictions on the use of the term “peoples”, thus Applicable to indigenous and ensuring that debate to whether Scope tribal peoples, without the former indigenous peoples are peoples in use of pejorative elements the sense of international law continues Art. 1.3 with regard to the right Limits  of self-determination that is only granted to peoples Only legally binding instruments Only twenty-two states ratified Legal Force specifically for indigenous peo- the Convention ples Indigenous peoples are given the No specific complaint procedure possibility to participate in the for indigenous peoples to ensure ILO meetings and to claim the the protection of the rights guar- Monitoring violation of an obligation; the anteed by the Convention; no ILO is open to innovate ways of direct access to supervisory bod- reporting violations ies d. The American Declaration on the Rights of Indigenous Peoples (Draft)

Positive Negative Incorporation of Art. III, similar to the corre- the right to self-  sponding Art. of the UNDRIP determination No definition of indigenous peo- Scope Indigenous peoples ples Limits  Art. IV bans secession

III. The right to self-determination of indigenous peoples in international and regional law

Legal Force Not yet finished Up until now, no specific com- Monitoring  plaint procedure has been incorporated

III. The right to self-determination of indigenous peoples in international and regional law

2. Differences between the ICCPR, the UNDRIP, ILO Convention 169 and the Draft American Declaration on the Rights of Indigenous Peo- ples

ICCPR UNDRIP ILO C 169 ADRIP (Draft) “Indigenous peoples have “Within the states, the right “All peoples have the right the right to self- to self-determination of the of self-determination. By determination. By virtue of indigenous peoples is recog- virtue of that right they that right they freely deter- No provision concerning nized, pursuant to which Wording freely determine their politi- mine their political status self-determination they can define their forms cal status and freely pursue and freely pursue their eco- of organization and promote their economic, social and nomic, social and cultural their economic, social, and cultural development” development” cultural development” Art. 27 concerning cultural Art. 4 concerning autonomy, Art. IX concerning juridical Other Provisions and religious rights in coun- Art. 5 and 34 concerning Art.s 6 and 7 concerning the personality, Art. XII con- concerning self- tries with minorities; of high indigenous legal system and right to economical, social cerning cultural identity, Art. determination importance to indigenous customs, Art.s 10-16 con- and cultural development XX granting the right to au- peoples cerning cultural rights tonomy All “peoples” (without defi- Indigenous and tribal peo- Scope Indigenous peoples Indigenous peoples nition) ples Art. 46 suggests that the Art. 1.3 which says that the right of self-determination in scope of the Convention has Art. IV that protects the ter- the Declaration may be re- Limits No explicit limits no impact on the discussion ritorial integrity and sover- stricted if it could threaten on the meaning of “peoples” eignty of a state the territorial integrity of a in international law state Legal Force Legally binding instrument Soft law Legally binding instrument 

III. The right to self-determination of indigenous peoples in international and regional law

Concluding observations and Annual reports that are being state-to-state complaint pro- supervised as well as three cedure; OP 1 that is fre- No specific monitoring pro- complaint procedures that No specific monitoring pro- Monitoring quently used to report claims cedure can be accessed by interna- cedure based on Art. 27 (decisions tional peoples as representa- on Art. 1 have been very tives of organizations restrictive) Member States 167 Adopted by 143 states 22 ? Significant as a universal High significance as the first High significance due to its Significance (with human rights instrument; document granting self- legal force; limited by the regard to self- higher significance would be determination to indigenous ? fact that self-determination is determination) reached by opening Art.1 to peoples; limited by the Dec- not explicitly addressed indigenous peoples laration being soft law

IV. The situation of the Amerindians within Canadian legislation

A. Legislative powers for aboriginal issues

The allocation of competences for aboriginal issues is complex in Canadian constitutional law. In general, the legislative powers are distributed by Art.s 91 and 92 of the Constitution Act 1867.327 Art. 91(24) gives legislative authority for “Indians, and the Land Reserved for Indians” to the Canadian Parliament. Nevertheless, some areas are reserved to the provinces such as health care or public affairs. Thus, the complexity arises from the necessity to make the two systems of government work together, e.g.: the federal government has the power to abolish an aboriginal title328 but once abolished, the territory linked to this title belongs to the province and therefore the federal government has to come to an agreement with the provincial government. When it comes to the scope of the federal legislative authority three aspects can be distinguished: Indians, land reserved for Indians and treaty rights. The problem of the first one lies mainly in its definition: what is the essential of the so-called “Indianness”? This delineation of concepts is important because it means that the provinces have no power to legislate in areas that are part of the Indianness. The exact content of these terms has not yet been defined. However, up until now the areas covered by the Indian Act (e.g. Indian status, judicial capaci- ty, privileges such as being registered as an Indian or having the right to vote for the Council of the Band, right to hunt) are recognized to belong to the federal government. In its decision Delgamuuwk v. British Columbia329 the Supreme Court stated that the traditional aboriginal rights330 are also part of the Indian quiddity. Moreover, the Canadian Parliament can enact laws concerning the reservations, the territories burdened with an aboriginal title and the territories where traditional aboriginal land rights are applicable. As to the treaty rights, the Su- preme Court decided that they form part of what is “Indian” and, therefore, fall in the federal’s sphere of competence.

327 The Constitution Act, 1867 (UK), 30 & 31 Victoria, c 3. 328 The aboriginal title includes the right to exclusive use and occupation of the land that has always been possessed by indigenous peoples. 329 SCC, Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010 330 Traditional aboriginal rights are the rights protected by Art. 35 C.A. 1982. The French version of this Art. makes understanding easier when compared to the English one: “Les droits existants - ancestraux ou issus de traités — des peuples autochtones du Canada sont reconnus et confirmés” (English: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”). 81

IV. The situation of the Amerindians within Canadian legislation

B. Indigenous identities: terminology to define the indigenous populations of Canada

1. Indians, Inuit and Métis In general terms, Art. 35(2) C.A.1982 defines who belongs to the indigenous population of Canada: “In this Act, ‘aboriginal peoples of Canada’ includes the Indian, Inuit and Métis peoples of Canada.”

This distinction is likewise important for the scope of Canadian laws, as for example the Inuit are not addressed by the Indian Act. According to this non-judicial definition the people belonging to the group of “Indians” are the so-called First Nations. This term is used to describe various indigenous peoples in Cana- da as long as they are neither Inuit nor Métis. There are more than 630 First Nations governments or bands in Canada, with a total population of nearly 700.000. Most of them are living in the provinces of Ontario, British Columbia and Manitoba.331 Inuit do not belong to the First Nations, but are aboriginal peoples of Canada who inhabit the northernmost regions of the country: Northwest Territories, Northern Quebec, Nunavut and Labrador.332 In the Inuit’s language, Inuktitut, Inuit means “people”. Pursuant to Supreme Court jurisprudence333 they fall under federal legislative authority according to Art. 91 (24) C.A. 1982, but are explicitly exempted from the Indian Act.334 The third group are the Métis who were also excluded from being “Indians” under the Indian Act. The Métis are descendants of mixed marriages, who nevertheless have their own distinctive history and culture. Anyhow, sometimes non-Status Indians are referred to as Métis and vice versa.335 With a mere population of nearly 390.000, the Métis are more numerous than the Inuit (50.000).336 The Supreme Court has established three criteria that have to be fulfilled in order to be recognized as a Métis, namely self-identification, ancestral connection and acceptance by the Métis community.337

331 Source: Statistics Canada, Aboriginal identity population, by province and territory, 2006 Census (http://www40.statcan.gc.ca/l01/cst01/DEMO60A-eng.htm, consulted 6.2.2012). 332 Source: Indigenous groups of Canada by Culture Area, Canadian Museum of Civilizations (http://www.civilization.ca/cmc/exhibitions/tresors/ethno/etb0000e.shtml, consulted 6.2.2012). 333 Supreme Court case Re Eskimos [1939] S.C.R. 104. 334 Art. 4 (1) Indian Act. 335 Cf. Calliou Brian/Voyageur Cora J., Various Shades of Red: Diversity within Canada’s Indigenous Commu- nity in: London Journal Of Canadian Studies, Vol. 16 (2000/2001), p. 118. 336 Source: Statistics Canada, Aboriginal identity population, by province and territory, 2006 Census (http://www40.statcan.gc.ca/l01/cst01/DEMO60A-eng.htm, consulted 6.2.2012). 337 SCC, R. v. Powley, 2003 SCC 43, [2003] 2 SCR 207, para. 31-33. 82

IV. The situation of the Amerindians within Canadian legislation

2. Treaty Indian v. Non-Treaty Indian v. Non-Status Indian

Compared to the general classification, the terms of (Non-) Treaty Indian and Status Indian have a legal connotation. Treaty Indians are Indians who have signed treaties with the Crown (or whose ancestors did so). Consequently, the term Non-Treaty Indian refers to those who did not enter into treaties for whatever reason. The distinction Treaty or Non-Treaty Indians is more theoretical as even Non-Treaty Indians have Status under the Indian Act. For example, most of British Columbia is for some reason or another not covered by treaty agreements, still the majority of Indians living there have Indian Status.338 The classification of being a “Status Indian” has more legal value. In general, a Status Indian is someone whom Indian Status under the I.A. has been recognized. Therefore, as already mentioned, only First Nations can obtain Indian Status. In order to profit from full Indian Sta- tus, a person has to be registered in the Indian Register and his or her name has to be entered into a Band List. 339 Someone having full Status will benefit from tax exemptions and having the rights linked with an entry into a Band List, namely the right to vote for the Chief and the Council of the Band. Those who are registered but who have been refused the status of a Band member, will continue to profit from the advantages of being a registered Indian but will not have the right to vote. On the opposite site, someone who is refused registration but accepted as a Band member has the right to vote but no other advantages. Consequently, someone who neither profits from full nor partial Indian Status is regarded as Non-Status Indian (the same holds true for those who once possessed Indian Status but lost it later on). In general, registration is permitted if both a person’s parents were entitled to be registered under the Indian Act.340 In the past problems arose from the earlier version of the Indian Act that stated, for example, that Indian women married to a non-Indian man would lose their Sta- tus while a non-Indian woman married to an Indian man would obtain Indian Status at their marriage. However, these provisions were changed in 1985 after a report of the Human Rights Committee and the discrimination was eliminated.

338 Cf. Calliou/Voyageur, Various Shades of Red (2000/01), p. 116f. 339 Art.s 5 to 8 Indian Act. 340 Art. 6 (1)f Indian Act. 83

IV. The situation of the Amerindians within Canadian legislation

C. Provisions applicable to Canadian aboriginal peoples

There are several laws and provisions in laws that lay down rights and duties for Canadian indigenous peoples. However, the right to self-determination is not among them. Canadian legislation thus only allows for a certain degree of autonomy and so the question relative to the form of self-determination arises. Some indigenous peoples benefit from the right to self- government as it is the case for the Inuit in Nunavut, for others the right to self-determination at maximum is realized by protecting traditional indigenous rights and indigenous language and, most of all, by granting land rights. Nevertheless, it should be noted that in the doctrine there is a general consensus that an inherent aboriginal right to autonomy and self- government exists independently from Canadian state law.341 Before discussing the laws as such, another interesting aspect concerning self-determination should be mentioned: in the light of a possible secession of Quebec, which might de facto happen one day, there is one problem that occurs: If Quebec secedes, can indigenous peoples in exercising their right to self-determination secede from Quebec? Aboriginal groups living on the territory of Quebec might not want to secede and to form a nation of their own in general, but nevertheless in the context of a possible secession of Quebec they might want to remain with Canada. Therefore, should they be granted the choice whether they belong to Que- bec or rather to Canada? Additionally, if so would that mean that Canadian legislation has to grant this right to self-determination to all Canadian indigenous peoples? For a long time politicians were silent on that issue. In 1994, federal Indian Affairs Minister Ron Irwin decided to speak up and declared that aboriginal leaders in Quebec were free to choose to remain a part of Canada: “The separatists say that they have a right to decide, then why don't the aboriginal people who have been here 20 times as long have the same right? It only seems logical to me.”342 Lucien Bouchard, at that time Leader of the Bloc Québécois, however, stated that: “Native people do not have the right to self-determination. It does not belong to them. We have been very clear on that, on legal grounds.”343

341 For example: Hutchins Peter W., The Aboriginal Right to Self-Government and the Canadian Constitution: The Ghost in the Machine in: University of British Columbia Law Review, Vol. 29 (1995), Foster Hamar, For- gotten Arguments: Aboriginal Title and Sovereignty in Canada Jurisdiction Act Cases in: Manitoba Law Journal, Vol. 21 (1996), Gélineau-Asseray Éric/Lajoie Andrée, Droits autochtones - Les conceptions canadiennes des droits ancestraux in: Revue Juridique Thémis, Vol. 23 (2004). 342 Cited after: Sanders Douglas, If Quebec Secedes from Canada Can the Cree Secede from Quebec in: Univer- sity of British Columbia Law Review, Vol. 29 (1995), para. 36. 343 Cited after: Ibid., para. 38. 84

IV. The situation of the Amerindians within Canadian legislation

The debate over the status of Quebec as well as of indigenous peoples continues and probably will not end soon. As already discussed, international law does not support secession, neither for Quebec, nor for indigenous peoples. Nevertheless, if Quebec became an independent state one day it would at least have to grant a right of autonomy to indigenous peoples and, regarding the distinct culture of for example Crees and Inuit in Quebec, they should get to choose whether to remain with Canada or not.344

1. The Indian Act The Indian Act345 is the law applicable to the majority of aboriginal peoples in Canada. As already mentioned, it regulates the affiliation of Indians to Bands and the registration in the federal Indian Register but also the intern organization of Indian Bands. The only interesting provisions, with regard to the right to self-determination, are those concerning the powers of the Council (Art.s 81-86),346 According to the law, the Council can adopt by-laws to the extent that they are not inconsistent with the Indian Act or any other federal or provincial regulation and then lists areas in which the Council can adopt such by-laws. Among them are the regulation of traffic, the observance of law and order and the removal and punishment of persons trespassing on the reserve. However, even if it seems that indigenous peoples have a certain degree of autonomy or even self-determination as they have the right to enact rules in some areas, this is not totally true. In many areas the approval of either the Minister or the Governor in Council is necessary for the by-law to enter into force,347 so that in reality there are very few issues to be regulated solely by the indigenous peoples (by the Council after ap- probation of the members of the Band), namely the election of the Chief (Art. 74), the establishment of membership rules (Art. 10) and the transfer of reserves (Art. 38). De facto these are not areas of high importance in practice and, therefore, do not grant a lot of autonomy to indigenous peoples.

2. The Constitution Act 1982 Art. 35 of the C.A. 1982348 states that: (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

344 Cf. Ibid., para. 49ff. 345 Indian Act, RSC 1985, c I-5. 346 The Council of the Band is either established according to Art. 74 Indian Act or according to the custom of the band. 347 Art.s 58, 82 Indian Act. 348 The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 85

IV. The situation of the Amerindians within Canadian legislation

Art. 35 protects ancestral rights and the aboriginal title, the scope of both has already been discussed in chapter one. The right to self-determination also comprises of the right to maintain and preserve the own culture, language and traditional habits. Thus, this aspect of self- determination is assured by Art. 35, and based on it, has been recognized several times by the Supreme Court. Nevertheless, the rights protected by Art. 35 are not absolute; they can be limited if two conditions are fulfilled: the restriction can be justified by an imperious and real aim and if the restriction is in conformity with the fiduciary obligations of the Crown to act in the best interest of the indigenous peoples.

3. The Canadian Charter of Rights and Freedoms The Charter349 as the main human rights instrument in Canadian legislation contains only one provision concerning indigenous peoples, Art. 25: “The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (a) any rights or freedoms that have been recognized by the Royal Proclamation of Oc- tober 7, 1763; and (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.”

When regarding self-determination, Art. 25 provides not much aid at all. This article also mainly protects land rights (as that were the rights recognized by the Royal Proclamation) but in no way helps to guarantee autonomy or self-government.

4. Other laws ensuring certain aspects of self-determination As can be seen, the right to self-determination is not a real right as such. However, several provincial laws should be mentioned that give special rights to indigenous peoples in order to guarantee the possibility of keeping their own traditions without regard to the society they live in. In Quebec these are for example:  The Charte de la langue française350 whose preamble recognizes the right of aboriginal people to maintain and develop their own language.351

349 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982. 350 L.R.Q., c. C-11. 351 “ L'Assemblée nationale reconnaît aux Amérindiens et aux Inuit du Québec, descendants des premiers habi- tants du pays, le droit qu'ils ont de maintenir et de développer leur langue et culture d'origine.” 86

IV. The situation of the Amerindians within Canadian legislation

 The Loi sur les droits de chasse et de pêche dans les territoires de la Baie James et du Nouveau-Québec352 that increases the possibility to hunt and fish on certain territories of Québec.  The Loi sur l’instruction publique pour les autochtones cris, inuit et naskapis353 and the Loi sur les services de santé et les services sociaux pour les autochtones cris354 that regulate the school system and the health care system in particular for indigenous peoples on Québec territory.

D. Self-government in practice: Nunavut

1. Introduction to Nunavut and the making of the NCLA Nunavut, “Our Land“ in Inuktitut, is today the largest territory of Canada and also the young- est: in 1999 the Nunavut Act355 separated it from the Northwest Territories. It covers almost two million square kilometers and has been inhabited by Inuit who migrated from Northern Alaska for about 1000 years. At the last census (2006) there were 29 325 people living in Nu- navut, with 24 635 of them being Inuit (approximately 85%).356 Nunavut is the least populat- ed region of Canada and home to Alert, the most northerly inhabited settlement of the world.357 Apart from English and French Inuktitut and Inuinnaqtun are the official languages of the territory. At the end of the 1960s the Inuit started to seek control over their lives and traditional lands and demanded more decision-making power in social, political and economic issues. The aim was to introduce a form of government in equilibrium between Inuit Nation and federal government.358 From 1974 onwards financial aid programs were provided in order to give various organizations the possibility to determine what areas of Canada should be subject to land claims by the Inuit and thus funded the land claims project of the Inuit Tapirisat of Canada that studied Indian land occupancy in the Arctic.359 This document was later used as a background paper to the Nunavut proposal.

352 L.R.Q., c. D-13.1. 353 L.R.Q., c. I-14. 354 L.R.Q., c. S-5. 355 Act to establish a territory to be known as Nunavut and provide for its government and to amend certain Acts in consequence thereof, S.C. 1993, c. 28. 356 Source: Nunavut Bureau of Statistics, http://www.eia.gov.nu.ca/stats/index.html (consulted 7.2.2012) 357 http://www.grc.k12.nf.ca/climatecanada/alert.htm (consulted 7.2.2012) 358 Cf. Légaré André, The process leading to a land claims agreement and its implementation: the case of the Nunavut Land Claims Agreement in: The Canadian Journal of Natives Studies XVI, Vol. 1 (1996), p.143. 359Cf. Argetsinger Timothy H.Aqukkasuk, The Nature of Inuit Self-Government in Nunavut Territory, Hanover, 2009, p. 20. 87

IV. The situation of the Amerindians within Canadian legislation

The first proposal for a Nunavut land claim was presented to the federal government in 1976; others followed in 1977 and 1979. By 1980 the ITC informed Ottawa that they would only sign a land claim agreement if the territory of Nunavut (at that time still part of the NWT) would be created. In 1982 the Tungavik Federation of Nunavut (TFN) was formed to pursue land claim and self-government negotiations on behalf of the Inuit of Nunavut. When negotiating land claim agreements, first there is an agreement-in-principle needed before the final agreement can be signed. In the case of Nunavut, it took ten years to reach an agreement-in- principle (1990) and another three years until the signature of the final agreement.360 On 26 May 1993 Inuit and representatives of the federal government signed the Nunavut Land Claims Agreement. For the territory to be born, two acts of legislation had to be passed: the Nunavut Act and the Nunavut Land Claims Agreement Act361 (ratifying the agreement as a law). At the time of the negotiations of the agreement in the 70s and 80s, aboriginal self- government was discussed at three constitutional conferences but in the end no right of indigenous peoples to govern themselves was integrated in the newly formed Canadian constitution. However, two years after the ratification of the NLCA the Canadian government adopted a policy recognizing the inherent right of aboriginal self-government.362 The Nunavut Land Claims Agreement comprises 42 articles and nearly 300 pages. Its two main elements are the extinguishing of the aboriginal title on the territory and a compensation for the Inuit. As one part of the compensation the Inuit received a sum of 1.1 billion CAD payable over 14 years as an exchange for the cession of territory.363 The others were land title benefits and certain self-government powers. With regard to self-determination, Art. 4 of the NCLA forms the foundations: “4.1.1 The Government of Canada will recommend to Parliament, as a government measure, legislation to establish, within a defined time period, a new Nunavut Territory, with its own Legislative Assembly and public government, separate from the Govern- ment of the remainder of the Northwest Territories”. Without an own territory, self-government in Nunavut as it exists now would never have been possible.364

360 Cf. Ibid. 361S.C. 1993, c. 29. 362Cf. Fenge Terry/Quassa Paul, Negotiation and Implementing the Nunavut Land Claims Agreement in: Op- tions Politiques (July/August 2009), p. 80. 363 Art. 2.7.1 NCLA: In consideration of the rights and benefits provided to Inuit by the Agreement, Inuit hereby: (a) cede, release and surrender to Her Majesty The Queen in Right of Canada, all their aboriginal claims, rights, title and interests, if any, in and to lands and waters anywhere within Canada and adjacent offshore areas within the sovereignty or jurisdiction of Canada. 364 Although both the NCLA and the Nunavut Act were signed in 1993, the latter did not enter into force until 1999 when it officially separated Nunavut from the Northwest Territories. 88

IV. The situation of the Amerindians within Canadian legislation

2. Self-government as a result of the NCLA Apart from the title to a large part of Inuit land, the agreement recognizes a certain degree of self-determination by including several provisions concerning self-government. Thanks to the NCLA the Inuit were made landowners of 356 000 square kilometers held in fee simple, which represents 18% of the territory of Nunavut.365 38 000 square kilometers of that area include rights to the exploitation of the surface and subsurface.366 The Inuit of Nu- navut thus are the largest landowners of Canada. Moreover, the Nunavut government differs from those of the other provinces as it was opted on a consensus government system rather than a party system. Thus, there are no political parties in Nunavut on territorial level but instead decisions are taken in consensus by the nine- teen members of the Legislative Assembly. Even though there is no tangible definition of “consensus government” in Nunavut, several other elements distinguish the territory from other Canadian jurisdictions, for example the Premier and Cabinet Ministers are chosen by the Members of the Legislative Assembly as a whole and a vote at unanimity is more often used.367 Another aspect of the specialty of Nunavut is that it is unique in Canada to have a “single level court”, the Nunavut Court of Justice. One of the most important provisions of the NCLA without doubt is Art. 23: “23.2.1 The objective of this Article is to increase Inuit participation in government employment in the Nunavut Settlement Area to a representative level. It is recognized that the achievement of this objective will require initiatives by Inuit and by Govern- ment.” The NCLA even furnishes a definition of “representative level of employment” which means “level of employment in the Nunavut Settlement Area that reflects the ratio of Inuit to the total population of the Nunavut Settlement Area”.368 Consequently, as approximately 85% of the population are Inuit, the same proportion of employees should be Inuit too. When it comes to government members this leads to a “de facto” self-government of the Inuit as they will always have a majority.369 Another element that makes the Nunavut government special and shows to what extent it is tried to make it as Inuk as possible is the use of Inuit Qaujimajatuqangit. Inuit

365 Art. 19 NCLA. 366 Cf. Mayer Report on Nunavut Devolution by Paul Mayer, Senior Ministerial Representative for Nunavut devolution, June 2007, p. 7 available at: http://publications.gc.ca/site/eng/312280/publication.html (consulted 7.2.2012). 367 Cf. Fact Sheet on the Nunavut Consensus Government pepared by the Government of Nunavut, available at: http://www.assembly.nu.ca/sites/default/files/Consensus%20Government%20in%20Nunavut%20- %20English.pdf (consulted 7.2.2012). 368 Art. 24.1.1. NCLA. 369 Cf. Légaré André, The process (1996), p. 153. 89

IV. The situation of the Amerindians within Canadian legislation

Qaujimajatuqangit is traditional Inuit Knowledge whose principles and values are relevant when delivering Government programs and services.370 As Michael Kral and Lori Idlout point out: “Many Inuit see the conscious incorporation of IQ as a tool for decision making as critical to the success or failure of Nunavut in aboriginal self-government”371. To facilitate the use of Inuit Qaujimajatuqangit a council of non-government members called Katimajiit was established within the Departement of Culture, Language, Elders and Youth372 that gives advice on how to implement the Inuit Knowledge in government work. Other rights and benefits to the Inuit in the NCLA that help self-government come true are:  Compensation for measures affecting the Inuit hunting-based economy  The exclusive right to use water on Inuit-owned land  The right to negotiate impact and benefit agreements concerning subsurface resources on land where Inuit own the territory.373

Nevertheless, besides the success of self-government in theory, in practice there are also problems that occur and challenges374 ahead. Unfortunately, Canada has not always kept the prom- ises made in the NCLA and has failed to respect certain provisions. In 2008 the Canadian government was criticized by the UN Human Rights Council for the failure of not adequately supporting the modern treaties to the full extent.375 Already in 2006 representatives of Nu- navut sued the government of Canada for breach of the Nunavut Land Claim Agreement.376 Nonetheless, the importance of the NCLA should not be underestimated, as Dalee Sambo Dorough says: “The reality and terms of Nunavut as an autonomous territory is a significant development for Inuit, which may play a role in future questions of Canadian Arctic sovereignty.”377

370 http://www.gov.nu.ca/hr/site/beliefsystem.htm (consulted 7.2.2012). 371 Kral Michael J./Idlout Lori, Participatory Anthropology in Nunavut in: Stern Pamela/Stevenson Linda (eds.), Critical Inuit Studies. An Anthology of Contemporary Arctic Ethnography, Lincoln and London, 2006, p. 54. 372 http://www.cley.gov.nu.ca/en/IQK.aspx (consulted 7.2.2012). 373 Cf. Fenge Terry/Quassa Paul, Negotiation and Implementing (2009), p. 81. 374 More detailed information is provided in the Mayer Report on Nunavut Devolution. 375 See: Universal Periodic Review of Canada, Submission of the Land Claims Agreements Coalition (LCAC) to the United Nations Human Rights Council, 8 September 2008 available at: http://www.uprinfo.org/IMG/pdf/LCAC_CAN_UPR_S4_2009_LandClaimsAgreementsCoalition_JOINT.pdf (consulted 7.2.2012). 376 See: The Canadian Bar Association, Nunavut Tunngavik Inc. launches Land Claim Implementation Lawsuit, http://www.cba.org/nunavut/main/sections_abor/news_2006-12-06.aspx (consulted 7.2.2012). 377 Dorough Dalee Sambo, Reflections on the UN Declaration of Indigenous Peoples: An Arctic Perspective in Allen/Xanthaki (eds.) Reflections (2011), p. 522. 90

V. Conclusions and outlook

As shown by the tables at the end of chapter III, the relevant documents concerning self- determination have similarities as well as differences. Even though only soft law, the UNDRIP probably is the most important instrument for indigenous peoples today. Despite it not being legally binding and the lack of a specific monitoring system, the achievement should not be underestimated: like no other instrument before, it gave indigenous peoples a voice, which is now heard in more than 140 states. However, from a legal perspective, the fact of giving a voice is not as relevant as it might be socially. Having a voice is of little use if one cannot invoke it before a court. ILO Convention 169 thus has the advantage of being legally binding, but only in 22 states. The ICCPR is even more universal than the UNDRIP, but discussions on its scope do not disappear. Only time will tell if and in which way the ADRIP will prove effective once it is adopted. One of the central questions of this work concerned the extent of the right to self- determination and its importance for indigenous peoples. As elaborated, self-determination is more than the popular idea of secession. It is the right to tradition, to culture and to a way of life that is distinct. In the reviewed documents it is often mentioned in connection with the social and economic development and political status. That holds of course true because that is the most obvious part and the one society perceives. Thus, it is only consequent that this part is the one that is most regulated by law because society is based upon norms and even though self-determination is important, it has to be realized within a certain legal framework.

Another question was the one asking about the protection of the right to self-determination by international documents. From a legal perspective, I would say that the UNDRIP is a milestone, already. This rather “young” instrument incorporates many ideas of indigenous peoples and does justice to a lot of their claims. The only real shortcoming is the lack of a monitoring system. On the other hand, national tribunals can use the Declaration in litigation so its success will largely depend on their will to establish the Declaration as a meaningful instrument for indigenous peoples. This can also be an advantage. In general, the access to national courts is easier than to international supervisory bodies. If domestic courts choose to use the Declaration and to accept claims based upon it, indigenous peoples’ rights will be more enforceable and better protected in future.

V. Conclusions and outlook

With regard to self-determination, ILO Convention 169 shows some deficits, primarily the fact that this special right is not mentioned. Secondly, with only 22 members, the Convention is not prone to strengthen indigenous rights all over the world. The International Covenant on Civil and Political Rights surely remains the most important human rights document. Due to its unfortunate phraseology, or rather due to its lack of definition of “peoples”, it is much less effective for indigenous peoples than it could be. The same holds true for the work of the Human Rights Committee, which, unfortunately as well, avoids any clear point of view on this subject.

To sum up, the main weak points can be described with very few words: the lack of a definition and of specific complaint procedures. Yet, of course, it is easier to criticize than to find solutions. Over years there have been debates and discussions on the definition and I would like to say that indigenous peoples have the right to be included in the term “peoples”. After all, one should not forget that a long time ago, indigenous peoples were the only people - in North America, for example. If one restricts “peoples” to populations of states, then indigenous peoples should be regarded as peoples as at one point they inhabited a whole continent, before the Europeans arrived and conquered them. On the other hand, their situation and status today should also be taken into account. In addition, it is reality that apart from some elements, indigenous peoples are minorities. Grant- ing the right to self-determination to them would also mean considering granting it to other minorities. Then it would have to be clarified how numerous such a group has to be in order to benefit from the right. All of that would probably challenge the world community in a way it is not up to yet. Nevertheless, again, it has to be distinguished between socio-political problems and challenges and legal ones. Despite all critique that every definition would be too vague or general, to make self-determination an enforceable right a definition is needed. This is the only way to ensure that a document is applied in a non-discriminatory way in every country, without placing the decision of whether the people at stake is indigenous or not in the hands of a national judge. When speaking of the weak points in general, insecurities when it comes to certain provisions or interpretations should not be overvalued. After all, in the case of the UNDRIP, for example, an agreement had to be found between more than 140 states and numerous organizations. Thus, it should not be surprise that sometimes one’s sights have to be lowered. Why there does not exist at least one monitoring procedure for indigenous peoples is questionable. This surely would be one step further in strengthening their rights. Apart from that, one problem

V. Conclusions and outlook lies in the fact that access to international tribunals is made highly complicated for indigenous peoples and that only little is done when it comes to information. After all, self-determination is a human right, meaning that with regard to human rights education more work should be done in order to have a better informed civil society and better educated politicians. If this subject would be more present in world politics, it might be easier to reach consensus on the definition issue and to find support for a legally binding document.

The last part of my work dealt with the situation in Canada. This was done in order to show that one should not forget the importance of national law. International law can set the guide- lines, can pave the way and enable compromises between states. It can uncover violations of obligations under international treaties or documents, help to set standards and draw attention to issues that are in need of attention. International law can say that indigenous peoples have the right to self-determination and thus, oblige a state to respect it. But national law has to make a contribution as well. In order to realize this right, national law has to protect indigenous languages and customs and to establish a legal system that will recognize claims of indigenous peoples and deal with them in an appropriate way. Self-government can only be realized on national level. States do have to accept that there might also be other ways of governing a territory than the way we are used to. However, to what extent this contribution has been realized or not remains an open question. Canadian national law definitely should contain a provision guaranteeing self-determination, instead of only mentioning ancestral rights.

From all that I have researched for this work, I dare say that international law and the world community are on the right track. A lot has been accomplished and peoples are more and more aware of the special situation of indigenous peoples. Moreover, with the creation of the Permanent Forum on Indigenous Issues indigenous peoples have their own advisory within a UN system which makes sure that their needs will not be ignored in future. Still, a lot more has to be done. There should be a way to hold states liable if they continue to break their obligations. Some say the forced assimilation of indigenous peoples has been genocide. Even if years have passed, the injustice done to indigenous peoples should be restored. Self-determination is more than a legal right. Self-determination manifests itself in so many elements, inseparable from culture, tradition and customs and is the foundation stone of hu- manity. Nevertheless, only a clear legal framework can guarantee the protection of all these elements. Without binding rules, indigenous peoples will continue living in a society that does not take into account their special interests and needs.

VI. Bibliography

A. Doctrine

1. Monographies Anaya S. James, Indigenous peoples in international law, Oxford and New York, 2004 Argetsinger Timothy H.Aqukkasuk, The Nature of Inuit Self-Government in Nunavut Territo- ry, Hanover, 2009 Courtemanche Alexandre, Le développement normatif et institutionnel relatif aux peuples autochtones en droit international au regard des fondements de leurs revendications politiques: le droit à l'autodétermination comme théorie unificatrice? Montréal, 2010 Francisco di Vitoria, Reflectiones Theologicae XII-De Indis De Iure Bellis, Part II “On The Indians Lately Discovered”, Translation by John Pawley Bate, edited by Ernest Nys, Lon- don New York, 1964 Farget Doris, Le droit au respect des modes de vie minoritaires et autochtones dans les contentieux internationaux des droits de l’homme, Montréal Marseille, 2010 Jennings Ivor, The Approach to Self-Government, Cambridge, 1956 Morin Michel, L’usurpation de la souveraineté autochtone. Le cas des peuples de la Nouvelle- France et des colonies anglaises de l’Amérique du Nord, Québec, 1997 Panzironi Francesca, Indigenous peoples’ right to self–determination and development policy, Sydney 2006 Thornberry Patrick, Indigenous peoples and human rights, Manchester, 2002 Xanthaki Alexandra, Indigenous Rights and United Nations Standards. Cambridge and New York, 2007

2. Volumes of collected articles Allen Stephen/Xanthaki Alexandra (eds.), Reflections on the UN Declaration on the Rights of Indigenous Peoples, Oxford and Portland, 2011 Charters Claire/Stavenhagen Rodolfo (eds.), Making the Declaration work: The United Na- tions Declaration on the Rights of Indigenous Peoples, Copenhagen, 2009 Neuhold Hanspeter/Hummer Waldemar/Schreuer Christoph (eds.), Österreichisches Hand- buch des Völkerrechts, Band 1, Wien, 2004 Rosset Peter/Patel Raj/ Courville Michael (eds.), Promised land: competing visions of agrarian reform, New York, 2006

VI. Bibliography

Stern Pamela/Stevenson Linda (eds.), Critical Inuit Studies. An Anthology of Contemporary Arctic Ethnography, Lincoln and London, 2006 Van Walt Michael C./Seroo Onno (eds.) The Implementation of the Right to Self- Determination as a Contribution to Conflict Prevention, Report of the International Con- ference of Experts held in Barcelona from 21 to 27 November 1998, UNESCO Division of Human Rights Democracy and Peace and the UNESCO Centre of Catalonia, Centre UNESCO de Catalunya, 1999

3. Journals/Guides Åhrén Mattias/Eide Asbjørn/Minde Henry, The UN Declaration on the Rights of Indigenous Peoples. What made it possible? The work and process beyond the final adoption in: Gáldu Čála Journal of Indigenous Peoples, Vol. 4 (2007) Åhrén Mattias/Henriksen John B./Scheinin Martin, The Nordic Sami Convention: Interna- tional Human Rights, Self-determination and other Central Provisions in: Gáldu Čála, Journal of Indigenous Peoples, Vol. 3 (2007) Boev Ivan, Le droit des peuples à l’autodétermination en droit des minorités ? in: L’Europe en formation, no. 317(2000) Borrows John, Indigenous Legal Traditions in Canada in: Journal of Law & Policy, Vol. 19. (2005) Borrows John, With or Without You: First Nations Law (in Canada) in McGill Law Journal, Vol. 41 (1996) Berg Brad, Introduction to Aboriginal Self-Government in International Law: An Overview in: Saskatchewan Law Review, Vol. 26 (1992) Bryant Michael J., Aboriginal Self-Determination: The Status of Canadian Aboriginal Peo- ples at International law in: Saskatchewan Law Review, Vol. 26 (1992) Calliou Brian/Voyageur Cora J., Various Shades of Red: Diversity within Canada’s Indige- nous Community in: London Journal Of Canadian Studies, Vol. 16 (2000/2001) Cirkovic Elena, An Analysis of the ICJ Advisory Opinion on Kosovo’s Unilateral Declaration of Independence in: German Law Journal, Vol. 11 (2010), p. 912 Dalton Jennifer E., International Law and the Right of Indigenous Self-Determination: Should International Norms be Replicated in the Canadian Context? Working Paper 2005 (1) Queen’s University (2005)

VI. Bibliography

De Oliveira Godinho Fabiana, Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions in: Max Planck Year- book of the United Nations Law, Vol. 12 (2008) Fenge Terry/Quassa Paul, Negotiation and Implementing the Nunavut Land Claims Agree- ment in: Options Politiques (July/August 2009) Foster Caroline E., Articulating the right of self-determination in the Draft Declaration on the Rights of Indigenous Peoples in: European Journal of International Law, Vol. 12 (2001) International Labour Standards Departement, Indigenous and Tribal Rights in Practice. A Guide to ILO Convention No. 169, Geneva, 2009 International Labour Standards Departement, Monitoring indigenous and tribal peoples’ rights through ILO Conventions. A compilation of ILO supervisory bodies’ comments 2009-2010, Geneva, 2010 Joffe Paul, UN Declaration on the Rights of Indigenous Peoples: Canadian Government Posi- tions Incompatible with Genuine Reconciliation in: National Journal of Constitutional Law, Vol. 26 (2010) Kymlicka Will, Theorizing Indigenous Rights in: University of Torono Law Journal, Vol. 49 (1999) Légaré André, The process leading to a land claims agreement and its implementation: the case of the Nunavut Land Claims Agreement in: The Canadian Journal of Natives Studies XVI, Vol. 1 (1996) Lombart Laurent, Le droit à l’autodétermination des Québécois dans le cadre fédéral- canadien: Le Québec peut-il accéder à l’indépendance ? in: Revue québécoise de droit international, Vol. 16 (2003) Muharremi Robert, A Note on the ICJ Advisory Opinion on Kosovo in: German Law Journal, Vol. 11 (2010) Neve Alex: Shame on Canada for opposing the UN Indigenous Peoples Declaration in: The Lawyers Weekly, Vol. 28 (2008) Pentassuglia Gaetano, State Sovereignty, Minorities and Self-Determination. A Comprehen- sive Legal Review in: International Journal on Minority and Group Rights, Vol. 9 (2002) Pippan Christian, The International Court of Justice’s Advisory Opinion on Kosovo’s Decla- ration of Independence: An exercise in the art of silence in: Europäisches Journal für Minderheitenfragen, Vol. 3 (2010) W.a. Recent International Advisory Opinion in: Harvard Law Review, Vol. 124 (2011)

VI. Bibliography

Roch François, Réflexions sur l'évolution de la positivité du droit des peuples à disposer d'eux-mêmes en dehors des situations de décolonisation in: Revue de Québécoise de Droit International, Vol. 15 (2002) Sanders Douglas, If Quebec Secedes from Canada Can the Cree Secede from Quebec in: University of British Columbia Law Review, Vol. 29 (1995) Shelton Dinah, Self-Determination in Regional Human Rights Law: From Kosovo to Came- roon in: The American Journal of International Law, Vol. 105 (2011) Simard Caroline: Un troisième ordre de gouvernement? in: Le Journal du Barreau, Vol. 29 (1997) Webber Jeremy, The Legality of a Unilateral Declaration of Independence under Canadian Law in: McGill Law Journal, Vol. 42 (1997)

B. Cases

1. Belize Supreme Court of Belize, Aurelio Cal, et al. v. Attorney General of Belize (Claims 171 and 172 of 2007), judgment of 18 October 2007

2. Canada District Court of Alberta, R.v.Pickard, 14 C.C.C. 33 (1908) Judicial Committee of the Privy Council, St. Catherine’s Milling & Lumber Co. v. The Queen, 14. App.Cas. 46 (1888)

Supreme Court of Canada: Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010 R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R 207 Reference by the Governor in Council concerning certain questions relating to the secession of Quebec from Canada (Reference Re Secession of Quebec) [1998] 2 S.C.R. 217 Reference Re Eskimos [1939] S.C.R. 104

3. Human Rights Committee Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada, Communication No. 167/1984 of 10 May 1990 (CCPR/C/38/D/167/1984)

VI. Bibliography

Länsman et al. v. Finland, Communication No. 511/1992 (UN Doc. CCPR/C/52/D/511/1992) The Mikmaq tribal society v. Canada, Communication No. 78/1980 of 30 September 1980 (U.N. Doc. Supp. No. 40 (A/39/40))

4. Inter-American Commission on Human Rights Miskito Indians case (OAS Doc. OEA/Ser.L/V/II.62 doc.10) Saramaka People v. Suriname (Preliminary Objections, Merits, Reparations, and Costs), Judgement of 28 November 2007 ((Ser. C) No. 172)) The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of 31 August , 2001, ((Ser. C) No. 79 (2001))

5. International Court of Justice: Case concerning East Timor (Portugal v. Australia), Judgement of 30 June 1995, ICJ Reports (1995) Legal consequences for States of the continued presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276, Advisory Opinion of 21 June 1971, ICJ Reports (1971) Accordance With International Law Of The Unilateral Declaration Of Independence In Re- spect Of Kosovo, Advisory Opinion of 22 July 2010, ICJ Reports (2010) Western Sahara, Advisory Opinion of 16 October 1975, ICJ Reports (1975)

6. United States of America U.S. Supreme Court, Worcester v. State of Georgia, 31 U.S. 515 (1832)

C. Documents

1. Canada Act to establish a territory to be known as Nunavut and provide for its government and to amend certain Acts in consequence thereof, S.C. 1993, c. 28 (Nunavut Act) Indian Act, R.S.C., 1985, c. I-5 Mayer Report on Nunavut Devolution by Paul Mayer, Senior Ministerial Representative for Nunavut devolution, June 2007 Nunavut Land Claims Agreement Act S.C. 1993, c. 29

VI. Bibliography

The Constitution Act, 1867 (UK), 30 & 31 Victoria, c. 3 The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 Ca- nadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982 Treaty 8 of 21 June 1899 Treaty Research Report - Treaty Eight (1899) by Dennis F.K. Madill

2. International Labour Organization International Labour Conference, 40th Session, Report VI (1), Geneva, 1956 International Labour Conference, 75th Session, Partial Revision Report VI (2), Geneva, 1988, International Labour Organization, Convention 107-Convention concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independ- ent Countries 1957, coming into force 2 June 1959 International Labour Organization, Convention 169-Convention concerning Indigenous and Tribal Peoples in Independent Countries 1989, coming into force 5 September 1991

3. Organization of American States Draft American Declaration On The Rights Of Indigenous Peoples –Working document comparing the original draft of the Inter-American Commission On Human Rights, proposals by the States and by the Indigenous representatives, as well as the proposed draft by the Chair Of The Working Group to prepare the Draft American Declaration On The Rights Of Indigenous Peoples, 9 January 2002 (OEA/Ser.K/XVI GT/DADIN/doc.53/02) OAS General Assembly Resolution AG/RES. 1610 (XXIX-O/99) OAS General Assembly Resolution AG/RES. 1780 (XXXI-O/01) Working Group to Prepare the Draft American Declaration on the Rights of Indigenous Peo- ples Thirteenth Meeting of Negotiations in the Quest for Points of Consensus, Record of the current status of the draft American Declaration on the Rights of Indigenous Peoples, 20 March 2011 (OEA/Ser.K/XVI /DADIN/doc.334/08 rev. 6. corr. 1)

4. United Nations Aureliu Cristescu: The Right To Self-Determination Historical And Current Development on The Basis Of United Nations Instruments, Study from 1981 (United Nations Publications E.80.XIV.3, New York) Citizenship And The Minority Rights Of Non-Citizens: Working paper submitted by Asbjorn Eide (UN Doc. E/CN.4/Sub.2/AC.5/1999/WP.3

VI. Bibliography

Commission on Human Rights, 52nd session, Report of the Working Group established in accordance with Commission on Human Rights resolution 1995/32 of March 3 1995 (UN Doc. E/CN.4/1996/84) Commission on Human Rights, 53rd session, Report of the working group established in accordance with Commission on Human Rights resolution 1995/32 (UN Doc. E/CN.4/1997/102) ECOSOC Resolution 1982/34, Study of the problem of discrimination against indigenous populations of 7 May 1982(E/RES/1982/34) Final Report and Recommendations: International Meeting of Experts on further study on the concept of peoples, 27-30 November 1989, Paris (UNESCO Document SHS- 89/CONF.602/7) General Assembly Resolution 1542 (XV), Transmission of information under Article 73 e of the Charter, of 15 December 1960 (A/RES/1542(XV) Gros Espiell Hector, The Right of Self-Determination: Implementation of UN Resolutions (UN Doc. E/CN.4/Sub.2/405/Rev.1) Human Rights Committee, 21st Session, General Comment No. 12, 1984 (HRI/GEN/1/Rev.9 (Vol.1)) Human Rights Committee, 65th Session, Concluding observations of the Human Rights Committee: Canada, 1999 (CCPR/C/79/Add.105) Human Rights Committee, 94th Session, General Comment No. 23, 2008 (CCPR/C/GC/33) Human Rights Committee, Fifth Periodic Report: Canada, 2004 (CCPR/C/CAN/2004/5) Human Rights Committee, Fourth periodic reports of States parties due in 1995: Canada, 1997 (CCPR/C/103/Add.5) International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, both of 16 December 1966 Martínez Cobo José R. , Study of the Problem of Discrimination Against Indigenous Popula- tions (UN Doc E/CN.4/Sub.2/1982/2/Add1 and UN Doc. E/CN.4/Sub.2/1986/7/Add.4) Optional Protocol to the International Covenant on Civil and Political Rights of 16 December 1966 (GA Resolution 2200A (XXI)) Permanent Forum on Indigenous Issus, Report on the 9th Session, 2010 (UN Doc. E/2010/43- E/C.19/2010/15) Press Release HR/4675 from 22 May 2003 on the 17th Meeting of the 2nd Session of the Per- manent Forum on Indigenous Issues

100

VI. Bibliography

Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Re- lated Intolerance, 31 August to 8 September 2001 (UN Doc. A/CONF.189/12) Report on the International Expert Seminar On The Role Of UN Mechanisms With Specific Mandate Regarding The Rights Of Indigenous Peoples, Madrid, 4-6 February 2009 Report on the United Nations Seminar on the effects of racism and racial discrimination on the social and economic relations between indigenous peoples and States, 16-20 January 1989, Geneva (UN Doc. E/CN.4/1989/22) Security Council Resolution 384 (1975), East Timor, of 22 December 1975 Security Council resolution 1244 (1999) [on the deployment of international civil and security presences in Kosovo] (S/RES/1244 (1999)) Standard-Setting Activities: Evolution Of Standards Concerning The Rights Of Indigenous People: Working Paper by the Chairperson-Rapporteur, Mrs. Erica-Irene A. Daes, on the concept of "indigenous people" (UN Doc. E/CN.4/Sub.2/AC.4/1996/2) Sub-Commission on Prevention of Discrimination and Protection of Minorities, 45th Session, Report of the Working Group on Indigenous Populations on its eleventh session (E/CN.4/1993/29, Annex I) Sub-Commission on the Promotion and Protection of Human Rights, 56th session, Report of the Working Group on Indigenous Populations on its 22nd session (UN Doc. E/CN.4/Sub.2/2004/28) UN Charter UN Declaration on the Rights of Indigenous Peoples (GA Res. A/61/295)

5. World Bank World Bank, Operational Directive 4.20, September 1991

D. Websites Aboriginal Affairs and Northern Development Canada, Canada's Position: United Nations Draft Declaration on the Rights of Indigenous Peoples, http://www.aadnc-aandc.gc.ca/eng/1100100014078/1100100014079 (consulted 28.1.2012) Anaya S. James/Wiessner Sebastian, The UN Declaration on the Rights of Indigenous Peo- ples: Towards Re-empowerment, http://jurist.law.pitt.edu/forumy/2007/10/un-declaration-on-rights-of-indigenous.php (consulted 20.3.2012)

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VI. Bibliography

Department of International Law, Organization of American States, http://www.oas.org/dil/indigenous_peoples.htm (consulted 5.2.2012) Fact Sheet on the Nunavut Consensus, http://www.assembly.nu.ca/sites/default/files/Consensus%20Government%20in%20Nunav ut%20-%20English.pdf (consulted 7.2.2012) Foreign Affairs and International Trade Canada, Canada Endorses the United Nations Dec- laration on the Rights of Indigenous Peoples, http://www.international.gc.ca/media/aff/news- communiques/2010/361.aspx?lang=eng&view=d, (consulted 28.1.2012) Foreign Affairs and International Trade Canada, Canada’s statement of support on the Unit- ed Nations Declaration on the Rights of Indigenous Peoples, http://www.international.gc.ca/indig-autoch/un_declaration_nov2010_onu.aspx? lang=eng&view=d (consulted 28.1.2012) Gateway to Aboriginal Heritage, on the Website of the Canadian Museum of Civilizations, http://www.civilization.ca/cmc/exhibitions/tresors/ethno/etb0000e.shtml (consulted 6.2.2012) Information on Alert, Nunavut, http://www.grc.k12.nf.ca/climatecanada/alert.htm (consulted 7.2.2012) International Labour Organization, Committee of Experts on the Application of Conventions and Recommendations, http://www.ilo.org/global/standards/applying-and-promoting-international-labour- standards/committee-of-experts-on-the-application-of-conventions-and- recommendations/lang--en/index.htm (consulted 24.2.2012) International Labour Organization, ILO standards and the UN Declaration on the Rights of Indigenous Peoples - Information note for ILO staff and partners, http://www.ilo.org/indigenous/Resources/Publications/WCMS_100792/lang--en/index.htm (consulted 14.1.2012) Lubicon Lake Nation Official Homepage, http://www.lubiconlakenation.com (consulted 24.1.2012) Nunavut Bureau of Statistics, Nunavut Quick Facts, http://www.eia.gov.nu.ca/stats/index.html (consulted 7.2.2012) Office of the High Commissioner, Fact Sheet No. 15: Civil and Political Rights: The Human Rights Committee (Rev.1),

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VI. Bibliography

http://www.ohchr.org/EN/PUBLICATIONSRESOURCES/Pages/FactSheets.aspx (consulted 5.3.2012) Statistics Canada, Aboriginal identity population, by province and territory (2006 Census), http://www40.statcan.gc.ca/l01/cst01/DEMO60A-eng.htm (consulted 6.2.2012) The Canadian Bar Association, Nunavut Tunngavik Inc. launches Land Claim Implementa- tion Lawsuit, http://www.cba.org/nunavut/main/sections_abor/news_2006-12-06.aspx (consulted 7.2.2012) The Participation of Indigenous Peoples in the United Nations System's Political Institutions, lecture by Professor Dr. Erica-Irene A. Daes at the Castan Centre for Human Rights, 27 May 2004, http://www.hreoc.gov.au/about/media/speeches/social_justice/un_political_institutions.htm l (consulted 20.3.2012) The Inter-American Commission of Human Rights (Official Homepage) http://www.oas.org/en/iachr/mandate/what.asp (consulted 5.2.2012) Universal Periodic Review of Canada, Submission of the Land Claims Agreements Coalition (LCAC) to the United Nations Human Rights Council, 8 September 2008, http://www.uprinfo.org/IMG/pdf/LCAC_CAN_UPR_S4_2009_LandClaimsAgreementsC oalition_JOINT.pdf (consulted 7.2.2012)

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