1. Anaya, J., Indigenous Peoples in International Law (Oxford University Press, New York, 1996) p. 4.Google Scholar

2. ILO Convention No. 107, 1957.Google Scholar

3. ILO Convention No. 169, 1989, entering into force on 5 September 1991 (see 72 ILO Official Bulletin 59).Google Scholar

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5. See Part 2, which deals with land and natural resources. Also refer to Articles 8 and 9 which attempts to recognise indigenous customs and customary laws, but which nonetheless give a wide scope for the States to override customary law.Google Scholar

6. Ratification has mainly come from the South American States.Google Scholar

7. Refer to the First Optional Protocol to the International Covenant on Civil and Political Rights (1966), which entered into force on 23 March 1976.Google Scholar

8. Chief Ominayak and the Lubicon Lake Cree Band v Canada HRC No. 167/1984, UN Doc. A/45/50 (1990); see also the General Comment of the Committee: “Self-determination is not a right cognizable under the Optional Protocol” (HRC General Comment No 23(50) Article 27, para 7, UN Doc. CCPR/C/21/Rev.1/Add.6 of 1994.Google Scholar

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12. For a good overview of the indigenous focus within the United Nations, refer to “The Rights of Indigenous Peoples,” Human Rights Fact Sheet No. 9 (Rev. 1) published by the United Nations Office of the High Commissioner for Human Rights.Google Scholar

13. The Sub-Commission has recently had its name changed to the “Sub-Commission on the Promotion and Protection of Human Rights.” See ECOSOC Dec. of 27 July 1996 (http://www.unhchr.ch/html/menu2/2/sc.htm).Google Scholar

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18. Op. Cit 192, Fact Sheet No. 9 at p. 11.Google Scholar

19. ECOSOC Decision 1988/34 of 27 May 1988.Google Scholar

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21. The Final report was submitted by Mr. Miguel Alfonso Martinez, Special Rapporteur: E/CN.4/Sub.2/1999/20 of 22 June 1999. A preliminary report was submitted by Mr. Miguel Alfonso Marintez, Special Rapporteur: E/CN.4/Sub.2/1991/33, 31 July 1991; the first progress report was submitted by Mr. Miguel Alfonso Martinez, Special Rapporteur: E/CN.4/Sub.2/1992/32, 25 August 1992; the second progress report submitted by Mr. Miguel Alfonso Martinez, Special Rapporteur: E/CN.4/Sub.2/1995/27 of 31 July 1995; and the third progress report was submitted by Mr. Miguel Alfonso Martinez, Special Rapporteur: E/CN.4/Sub.2/1996/23 of 15 August 1996.Google Scholar

22. See CHR Decision 1997/114 of 13 April 1997 (fifty-third session), which took note of Sub-Commission Res. 1996/38 of 29 August 1996.Google Scholar

23. See preliminary working paper on indigenous people and their relationship to land prepared by Special Rapporteur, Mrs. Erica-Irene Daes (E/CN.4/Sub.2/1997/17, 20 June 1997 and Corr.1); and progress report on the working paper on indigenous people and their relationship to land prepared by Special Rapporteur, Mrs. Erica-Irene Daes (E/CN.4/Sub.2/1998/15 of 22 July 1998).Google Scholar

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25. Sub-Commission Res. 1990/26 of 31 August 1990.Google Scholar

26. See the Transnational Investments and Operation on the Lands of Indigenous Peoples, Report of the UN Centre on Transnational Corporation pursuant to Sub-Commission Res. 1990/26 (E/CN.4/Sub.2/1991/49 of 17 July 1991); and the Report of the UN Centre on Transnational Corporation pursuant to SC Res. 1990/26 (E/CN.4/Sub.2/1994/40 of 15 June 1994).Google Scholar

27. Preliminary report on the Protection of the heritage of indigenous people prepared by Special Rapporteur, Mrs. Erica-Irene A. Daes (E/CN.4/Sub.2/1993/28).Google Scholar

28. Sub-Commission Res. 1993/44 of 26 August 1993.Google Scholar

29. Preliminary report on the Protection of the heritage of indigenous peoples, prepared by Special Rapporteur, Mrs. Erica-Irene A. Daes (E/CN.4/Sub.2/1994/31 of 8 July 1994); Final report on the Protection of the heritage of indigenous peoples, prepared by Special Rapporteur, Mrs. Erica-Irene A. Daes (E/CN.4/Sub.2/1995/26 of 21 June 1995); and Supplementary report on the Protection of the heritage of indigenous peoples, prepared by Special Rapporteur, Mrs. Erica-Irene A. Daes (E/CN.4/Sub.2/1996/22 of 24 June 1996).Google Scholar

30. Sub-Commission Res. 1997/13 of 22 August 1997.Google Scholar

31. This meeting has been tentatively re-scheduled for the end of February 2000.Google Scholar

32. Seminar on the Experience of Countries in the Operation of Schemes of Internal Self-government for Indigenous People, Nuuk, Greenland, September 1991; a Technical Conference on the Role of Indigenous Peoples in the Practice of Sustainable Development, Sanitago, Chile, May 1992, being part of the preparations to the Earth Summit in Rio de Jainero.Google Scholar

33. Report of the Workshop of Indigenous Journalists (E/CN.4/Sub.2/AC.N/1998/6 of 18 May 1998).Google Scholar

34. Report of the Expert Seminar on Practical Experiences Regarding Indigenous Land Rights and Claims (E/CN.4/Sub.2/AC.4/1996/6 and addendum of 25 May 1996).Google Scholar

35. GA Res. A/45/164 of 18 Dec 1990.Google Scholar

36. Vienna Declaration and Programme of Action adopted at the World Conference, Vienna, June 1993 (A/CONF.157/24 (Part I), chap III).Google Scholar

37. GA Res. A/48/163 of 21 December 1993.Google Scholar

38. Ibid. Google Scholar

39. GA Res. A/50/157 of 21 December 1995, annex.Google Scholar

40. SC Res. 1994/45 of 26 August 1994.Google Scholar

41. CHR Res. 1995/32 of 3 March 1995.Google Scholar

42. Including a statement of the aims and purposes of their organisation, information on their activities and programs, and the countries in which the activities are carried out.Google Scholar

43. Article 42.Google Scholar

44. The working group on indigenous populations of the Sub-Commission on Prevention of Discrimination and Protection of Minorities has been meeting since 1983, and the Sub-Commission entrusted the Chairperson-Rapporteur of the working group, Mrs Erica-Irene Daes, with elaborating the paragraphs of the Draft in its resolution 1992/33 of 27 August 1992.Google Scholar

45. These articles are recognised as being of minimal controversy - Article 5: Every indigenous individual has the right to a nationality; Art 43: All the rights and freedoms recognised herein are equally guaranteed to male and female indigenous individuals.Google Scholar

46. GA Res. 47/135, 1992.Google Scholar

47. The issue of States amending the text of the Draft declaration arose throughout the fourth session of the WGDD. Indigenous representatives emphasised that experts had formulated and reviewed the text, and that any proposed amendments had to be essential and substantiated by coherent reasoning. To stall the adoption of articles over semantics would not be considered by the indigenous representatives to be good faith negotiations.Google Scholar

48. For a more complete discussion of the different views expressed during the fourth open-ended inter-sessional working group in December 1998 (Arts 1, 2, 12, 13, 14, 15, 16, 17, 18, 44 and 45) see: Julie Debeljak “Formality against Informality: the fourth working group on the Draft United Nations declaration on the rights of indigenous peoples,” (1999) 40 International Law News 76–87.Google Scholar

49. See Kymlinka, , “The Value of Cultural Membership” in Liberalism, Community and Culture (1989); Waldron, “Minority Cultures and the Cosmopolitan Alternative” reprinted in Kymlinka, The Rights of Minority Cultures (1995) 93; Young, , Justice and the Politics of Difference (1990); Appardurai, , “Disjuncture and Difference in the Global Cultural Economy” in Featherstone, Global Culture (1990) 295.Google Scholar

50. Articles 6, 7, and 8 specifically refer to collective rights, and all references to “indigenous peoples” can be read as recognising group rights.Google Scholar

51. Article 1: “Indigenous peoples have the right to the full and effective enjoyment of all human rights and fundamental freedoms recognised in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law.” Article 2: “Indigenous individuals and peoples are free and equal to all other individuals and peoples in dignity and rights, and have the right to be free from any kind of adverse discrimination, in particular that based on their indigenous origin or identity.”Google Scholar

52. Bolivia, Brazil, Colombia, Denmark, Ecuador, Finland, Guatemala, Mexico, Norway, Peru, and Switzerland. Canada wanted the primary importance of individual rights to be recognised in this Article.Google Scholar

53. Australia, Bolivia, Brazil, Canada, Denmark, Ecuador, Finland, Guatemala, New Zealand, Norway, Peru, Russian Federation, Switzerland, and Venezuela.Google Scholar

54. As did the Netherlands.Google Scholar

55. Argentina and France has similar concerns.Google Scholar

56. Op. cit. 226.Google Scholar

57. See statement made by Mr. J. Anaya, Indian Law Resource Center, at the WGDD; also refer to J. Anaya, Op. Cit. 181.Google Scholar

58. 1981.

59. See Chapter III, especially Article 56, of the African Charter on Human and Peoples’ Rights (1981).Google Scholar

60. Human Rights Committee Decision (UN Doc A/43/40, p221).Google Scholar

61. See Mikmaq Tribal Society v Canada HRC No. 205/1986, UN Doc. A/47/40 (1992); and Chief Ominayak and the LubiconLake Cree Band v Canada HRC No. 167/1984, UN Doc. A/45/50 (1990).Google Scholar

62. Refer to the First Optional Protocol to the International Covenant on Civil and Political Rights (1966), which entered into force on 23 March 1976.Google Scholar

63. See articles 1, 2, 5 (right to nationality), 6 (right to life, physical and mental integrity, liberty and security of person), 7 (protection against ethnocide and genocide), 8 (preserving the option not to identify as indigenous), 15 (right to education), and 43 (gender equality rights).Google Scholar

64. Chairperson of the Aboriginal and Torres Strait Islander Commission, Australia (his speech was delivered by Mr. Mick Dodson, former Social Justice Commissioner).Google Scholar

65. From the Aboriginal Legal Service of Western Australia, Australia.Google Scholar

66. From the Consejo Indio de Sudamerica.Google Scholar

67. From the Kimberley Land Council, Australia.Google Scholar

68. See GA Resolution on Self-Determination 12 December 1958; GA Resolution 1514 (XV), Declaration on the Granting of Independence to Colonial Countries and Peoples, of 14 December 1960. The principle has been defined extensively the GA Resolution 2625 (XXV), Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, of 1970. The ICCPR and the International Convention on Economic, Social and Cultural Rights (“ICESCR”) share a common Article 1 guaranteeing self-determination.Google Scholar

69. Argentina argued that the term “indigenous peoples” did not impliedly recognise the right to self-determination and argued that the Argentina government already represented all the people of Argentina, including the indigenous.Google Scholar

70. Cuba, Guatemala, and Pakistan.Google Scholar

71. Chile, China, France (sought clarification that the right would not be exercised to the detriment of other inhabitants of the State; this represents a change in view since the second meeting where France was staunchly opposed to “self-determination”), Norway, Sweden, and United Kingdom.Google Scholar

72. The following Governments required at least one of the listed qualifications: Bolivia, Brazil, Colombia, Denmark, Finland, Mexico, New Zealand, and Switzerland.Google Scholar

73. Op. Cit. 248.Google Scholar

74. Op. Cit. 248.Google Scholar

75. CERD General Recommendation XXI, para 11, of 15 March 1996 (UN Doc. A/51/8).Google Scholar

76. Op. Cit. 255, para 9.Google Scholar

77. In the sense that settler colonies have been freed from colonial domination, but indigenous peoples have not been freed from the domination of the settlers.Google Scholar

78. Opinion 2 of the Badinter Arbitration Committee (1992); see Pellet, A, “The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-determination of Peoples” (1992) 86 EJIL 178, Appendix.Google Scholar

79. HRC General Comment No 23/1994 of 8 April 1994, para. 3 especially (UN Doc CCPR/C/21/Rev.1/Add.5, 1994).Google Scholar

80. From the MAA Development Association.Google Scholar

81. From the Navajo Nation.Google Scholar

82. Op. Cit. 248.Google Scholar

83. From the Navajo Nation.Google Scholar

84. Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity, 1995, pp. 13–17; Corntassel and Primeau, “Indigenous ‘Sovereignty’ and International Law: Revised Strategies for Pursuing ‘Self-Determination,'” Human Rights Quarterly 17 (1995) 343, pp. 352–3.Google Scholar

85. Comments by the representative of Peru were similar.Google Scholar

86. From the New South Wales Aboriginal Land Council.Google Scholar

87. This statement was contained in a working paper circulated by Australia at the meeting: see the statement prepared by Mr. Gatjil Djerrkura and presented by Mr. Dodson relating to self-determination on 7 December 1998.Google Scholar

88. Op. Cit. 248.Google Scholar

89. See the statement prepared by Mr. Gatjil Djerrkura and presented by Mr. Dodson relating to self-determination on 7 December 1998.Google Scholar

90. See generally: Corntassel, and Primeau, , “Indigenous ‘Sovereignty’ and International Law: Revised Strategies for Pursuing ‘Self-Determination,'” (1995) 17 Human Rights Quarterly 343; Law, “Making Room for Peoples at the UN: Thoughts Provoked by Indigenous Claims to Self-Determination” (1992) 25 Cornell International Law Journal 603; Trask, M., “Self-Determination and Indigenous People: Native Hawaiians and the UN Draft Declaration on the Rights of IP,” Speakers Notes at the Australian Reconciliation Convention, Melbourne, Australia, May 1997; Anaya, J., Indigenous Peoples in International Law (1996); Anaya, J., “The Principles of Self-Determination and Indigenous Peoples under International Law,” Speakers Notes at the Australian Reconciliation Convention, Melbourne, Australia, May 1997.Google Scholar

91. That is, dilute “self-determination” to the extent that as it relates to indigenous peoples, the term should only be read as referring to internal self-determination, not external self-determination.Google Scholar

92. Chief Ominayak and the Lubicon Lake Cree Band v Canada HRC No. 167/1984, UN Doc. A/45/50 (1990), p. 1.Google Scholar

93. Article 2 of the ICCPR states that “any person whose rights of freedoms as herein recognised are violated shall have an effective remedy. …”Google Scholar

94. Human Rights Committee, UN Doc. CCPR/52/D/511/1992.Google Scholar

95. From the Foundation for Aboriginal and Islander Research Action.Google Scholar

96. In Canberra 1993, see the statement prepared by Mr. Gatjil Djerrkura and presented by Mr. Mick Dodson relating to self-determination on 7 December 1998.Google Scholar

97. See generally: Clifford, J., “Identity in Mashpee,” extracts from The Predicament of Culture: Twentieth Centry Ethnography, Literature and Art (1988); Tully, J., Strange Multiplicity: Constitutionalism in an Age of Diversity (1995); Williams, “Encounters on the Frontiers of International Human Rights Law: Redefining the terms of Indigenous Peoples’ Survival in the World,” (1990) Duke Law Journal 660.Google Scholar

98. Human Rights Committee, UN Doc. A36/40, reprinted in Selected Decisions under Optional Protocol, Vol. 1, p. 83.Google Scholar

99. Op. Cit. 240.Google Scholar

100. This point should be contrasted with the Human Rights Committee's decision in Lovelace v Canada (UN Doc. A/36/40, Annex XVIII (1981); reprinted in Selected Decisions under Optional Protocol, Vol 1, p83). In Lovelace, the phrase “persons belonging” under Article 27 was held to include those that were born and brought up on reserves, who had kept ties with the community and who wish to maintain ties with the community. Although note, the Committee did consider the situation of Lovelace to be exceptional.Google Scholar

101. See also the Working Paper by the Chairperson-Rapporteur, Mrs. Erica-Irene Daes, “Standard Setting Activities: Evolution of Standards concerning the rights of indigenous People: The Concept of ‘Indigenous Peoples'” (E/CN.4/Sub.2/AC.4/1996/2, 10 June 1996 with various addendum).Google Scholar

102. Anaya, J., Op. Cit. 181, p. 3.Google Scholar

103. HRC General Comment No. 23/1994, para 4 and 5.Google Scholar

104. Bangladesh, China, Malaysia (any definition of “indigenous peoples” that conflicted with its constitutional definition would not be acceptable), and United States.Google Scholar

105. Australia (stated that in Australia it was not difficult to identify who was indigenous, but was happy to have an inclusive definition to aid other countries), Bangladesh, and Norway.Google Scholar

106. Bangladesh and China.Google Scholar

107. Canada, Chile, Cuba, Denmark, Ecuador, Finland, New Zealand, and Norway.Google Scholar

108. Representing the Aboriginal and Torres Strait Islander Commission.Google Scholar

109. See General Comment VIII.Google Scholar

110. Malaysia and Switzerland.Google Scholar

111. HRC General Comment No. 23/1994 of 8 April 1994, para. 4 in particular (UN Doc CCPR/C/21/Rev.1/Add.5, 1994).Google Scholar

112. The High Commissioner for Human Rights, Mrs. Robinson, and Denmark agreed that the building of confidence and mutual understanding between indigenous peoples and the States as important criteria for success in the long run.Google Scholar

113. E/CN.4/1998/WG.15, 11 December 1998.Google Scholar

114. There are many references to the establishment of a permanent forum within the United Systems from the existing bodies of the United Nations. See GA Res. 49/214 of 23 December 1994; GA Res. 50/157 of 21 December 1995, GA Res 51/78 of 12 December 1996; GA Res 52/108 of 12 December 1997; GA Res 53/130 of 9 December 1998; CHR Res. 1994/28 of 4 March 1994; CHR Res. 1995/30 of 3 March 1995; CHR Res. 1996/41 of 19 April 1996; CHR 1997/30 of 11 April 1997; CHR 1998/20 of 9 April 1998; CHR Res. 1999/52 of 27 April 1999; Sub-Commission Res. 1994/28 of 4 March 1994; Sub-Commission Res. 1994/50 of 26 August 1994; Sub-Commission Res. 1995/39 of 24 August 1995; Sub-Commission Res. 1997/10 of 22 August 1997.Google Scholar

115. Op. cit. 216.Google Scholar

116. GA Resolution 48/163 of 21 December 1993 on the International Decade of the World's Indigenous People.Google Scholar

117. GA Resolution 50/157 of 21 December 1995, annex.Google Scholar

118. GA Resolution 50/157 of 21 December 1995.Google Scholar

119. The review was submitted at the fifty-first session of the General Assembly, 14 October 1996 (UN Doc. A/51/493).Google Scholar

120. Refer to CHR Report “Indigenous Issues: Activities undertaken and information received in pursuance of Commission Resolution 1996/41 on a permanent forum for indigenous people in the United Nations system: Report of the Secretary-General” of 16 January 1997 (E/CN.4/1997/100).Google Scholar

121. CHR Res. 1995/30 of 3 March 1995 called for the first workshop to be held in Copenhagen, which produced “Consideration of a permanent forum for indigenous people: report of the workshop held in accordance with Commission resolution 1995/30, Copenhagen, 26-28 June 1995” (E/CN.4/Sub.2/AC.4/1995/7, with addendum); CHR Res. 1997/30 of 11 April 1997 called for the second workshop to be held in Santiago, which produced “Report of the second workshop on a permanent forum for indigenous people iwthin the United Nations system held in accordance with Commission on Human Rights resolution 1997/30, Santiago, 30 June - 2 July 1997” (E/CN.4/1998/11, with annendum).Google Scholar

122. Op. cit. 301 annexes Annex I, II and III of the 1997 report.Google Scholar

123. These participants referred to the arrangements for participation and membership in the Development Fund for the Indigenous Peoples of Latin America and the Caribbean.Google Scholar

124. CHR Res 1998/20 of 9 April 1998.Google Scholar

125. That is, under the special procedure set out in the annex of CHR Res. 1995/32 of 3 March 1995.Google Scholar

126. ECOSOC Decision 1998/247 of 30 July 1998.Google Scholar

127. See the “Report of the open-ended inter-sessional ad hoc working group on a permanent forum for indigenous people in the United Nations system,” Chairman Rapporteur Mr. Richard van Rijssen (E/CN.4/1999/83 of 25 March 1999).Google Scholar

128. See Rule 24 and 15 of the rules of procedure of the functional commissions of the Economic and Social Council.Google Scholar

129. New Zealand and Paraguay. Indigenous representatives included: the Aboriginal Legal Service of Western Australia, Comite Intertribal, Consejo Indio de Sud America, Coordinadora de las Organizaciones Indigenas de la Cuenca Amazonica, New South Wales Aboriginal Land Council.Google Scholar

130. National Aboriginal and Torres Strait Islander Legal Services Secretariat.Google Scholar

131. The Aboriginal Legal Service of Western Australia, Consejo Indio de Sud America, Innu Council of Nitassinan, New South Wales Aboriginal Land Council.Google Scholar

132. CERD Dec. 1(53) on Australia on 11 August 1998 (A/53/18, para. 22).Google Scholar

133. See the Commonwealth of Australia's response (CERD/C/347).Google Scholar

134. CERD Dec. in its fifty-fourth session, 1-19 March 1999, paras. 6-8 (CERD/C/54/Misc.40/Rev.2 of 18 March 1999, unedited version).Google Scholar

135. Op. Cit. 314, para. 9.Google Scholar

136. Op. Cit. 314, para. 11.Google Scholar

137. See Attorney-General, The Hon. Daryl Williams AM QC MP, News Release No. 541 of 19 March 1999.Google Scholar

138. Brazil and the United States.Google Scholar

139. Brazil and India.Google Scholar

140. Indigenous representatives from Bolivia, Ecuador, Guatemala and Mexico.Google Scholar

141. The Aboriginal Legal Service of Western Australia, Comite Intertribal, Coordinadora de las Organizaciones Indigenas de la Cuenca Amazonica, Grand Council of Crees, Inuit Circumpolar Conference, New South Wales Aboriginal Land Council, Saami Council.Google Scholar

142. Coordinadora de las Organizaciones Indigenas de la Cuenca Amazonica, Inuit Circumpolar Conference, Saami Council.Google Scholar

143. Inuit Circumpolar Conference, Saami Council.Google Scholar

144. New Zealand.Google Scholar

145. Except the Sub-Commission.Google Scholar

146. The Aboriginal Legal Service of Western Australia, Comite Intertribal, Consejo Indio de Sud America, Coordinadora de las Organizaciones Indigenas de la Cuenca Amazonica, Inuit Circumpolar Conference, New South Wales Aboriginal Land Council, Saami Council.Google Scholar

147. The Aboriginal Legal Service of Western Australia, Grand Council of Crees, New South Wales Aboriginal Land Council.Google Scholar

148. Australia agreed.Google Scholar

149. If a permanent forum were established, Australia's demand was supported by the Asian Group.Google Scholar

150. The Aboriginal and Torres Strait Islander Commission, Aboriginal Legal Service of Western Australia, Comite Intertribal, Consejo Indio de Sud America, Coordinadora de las Organizaciones Indigenas de la Cuenca Amazonica, National Aboriginal and Torres Strait Islander Legal Services Secretariat, New South Wales Aboriginal Land Council.Google Scholar

151. Grand Council of Crees and New South Wales Aboriginal Land Council.Google Scholar

152. The Asian Group.Google Scholar

153. Declaration of the First International Conference on a Permanent Forum in the United Nations System, Temuco, Chile 6-9 May 1997 (E/CN.4/1998/11/Add.1, annex IV of 19 September 1997); and Declaration of the Second International Conference on a Permanent Forum in the United Nations System, Ukupseni, Kuna Yala, Panama, 4-6 March 1998 (E/CN.4/1998/11/Add.3 of 18 March 1998).Google Scholar

154. CHR Res. 1999/52 of 27 April 1999.Google Scholar