Realisation of the right of indigenous peoples to natural resources under international law through the emerging right to autonomy

Abstract

For most indigenous communities, communal lands and natural resources have fundamental spiritual, social, cultural, economic and political significance that is integrally linked to both their identity and continued survival. Denial of the inherent and inalienable rights to their traditional land and natural resources is often at the root of human rights violations, giving rise to intra-state tensions and laying the foundation for emerging and ongoing conflicts. Full enjoyment of their land rights, including access to and control over the lands and their natural resources, would imbue indigenous peoples with the economic independence they need to preserve their distinct cultures and determine their futures. Immediate resolution of this issue is critical to ensuring that indigenous peoples are able to enjoy the rights to which they are entitled, and to enhance stability at the national level. It is suggested that one possible means is through the strategic reconceptualisation of self-determination. More specifically, the implementation of alternative manifestations of this right, particularly the effective realisation of the emerging right to autonomy, recognised in the Declaration on the Rights of Indigenous Peoples, would enable indigenous peoples to have effective, de facto control over all aspects of their political, social, cultural and economic survival.

Keywords:

• indigenous rights
• right to autonomy
• right to natural resources
• Declaration on the Rights of Indigenous Peoples
• international human rights law

Acknowledgements

I am grateful to Alessia Rossetti, and particularly Timofey Agarin, for their constructive comments on an earlier draft of this article. I am also grateful to Professor Geoff Gilbert for influencing the development of many ideas expressed here through his scholarship and guidance. Responsibility for the views expressed are, of course, mine alone. I would like to dedicate this article to Virginia and Richard Northcott for their unwavering support and encouragement, and to the memory of Professor Kevin Boyle for his instruction, inspiration and friendship and in recognition of his lifelong dedication to the realisation of human rights.

Notes

Survival International, Disinherited: Indians in Brazil, Survival International, London, 2000, at 1, 5, 25, 33, 42. Dirk Moses suggests that a re-examination of Raphael Lemkin's thinking on genocide reveals a broader understanding of the term than he is generally credited with or than is found in the UN Convention on the Prevention and Punishment of the Crime of Genocide. Dirk A. Moses, ‘Lemkin, Culture and the Concept of Genocide,’ The Oxford Handbook of Genocide Studies, ed. Donald Bloxham, (Oxford University Press, Oxford, 2010), 19–41. Damien Short, moreover, concurs with indigenous activists who assert that the contemporary culturally destructive policies in Australia, including reconciliation processes, interventionist ‘solutions’ and the native title land rights regime, as well as the colonial structures that produce and support them, are genocidal. He argues that while such policies and practices are often referred to as cultural genocide, they should be identified as genocide without the need for qualification. Damien Short, ‘Cultural Genocide and Indigenous Peoples: A Sociological Approach’, The International Journal of Human Rights 14, Nos. 6–7, (2010): 831–846.

Rudolfo Stavenhagen, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Submitted to the Commission on Human Rights, E/CN.4/2002/97, 4 February 2002, paras. 34–111.

Erica-Irene A. Daes, ‘Indigenous Peoples’ Rights to Land and Natural Resources', in Minorities, Peoples and Self-Determination: Essays in Honour of Patrick Thornberry, ed. Nazila Ghanea and Alexandra Xanthaki (Leiden: Martinus Nijhoff Publishers, 2005), 75–91, 78.

According to Daes, these resources may include ‘air, coastal seas, and sea ice as well as timber, minerals, oil and gas, genetic resources and all other material resources pertaining to indigenous lands and territories’ belonging to them by virtue of their historical holding or enjoyment of the incidents of ownership such as use, possession, control and/or right of dispossession. Ibid., 88.

For a discussion on the creation and deployment of an authentic indigeneity, see Yin C. Paradies, ‘Beyond Black and White: Essentialism, Hybridity and Indigeneity’, Journal of Sociology 42, no. 4 (2006): 355–367.

Daes, ‘Indigenous Peoples’, 76.

Ibid., 79.

Ibid.

Oral statement by Rodolfo Stavenhagen, special rapporteur on the situation of human rights and fundamental freedoms of indigenous people, sixth session of the UN Permanent Forum on Indigenous Issues, New York, 18 May 2007.

Daes, ‘Indigenous People’, 81–85.

Erica-Irene A. Daes, Indigenous peoples' permanent sovereignty over natural resources: Final Report of the Special Rapporteur, E/CN.4/Sub.2/2004/30, 13 July 2004, para. 8. This perspective also reflects the belief that economic resources should be shared among the population and that economic and social rights have equal weight and status to civil and political rights. Geoff Gilbert, ‘Autonomy and Minority Groups: A Right in International Law?’ Cornell International Law Journal 35, (2002): 307–352.

Permanent Forum on Indigenous Issues, Report on the Sixth Meeting, 14–25 May 2007, E/2007/43, para. 6.

Ibid., para. 6.

John B. Henriksen, ‘Implementation of the Right of Self-Determination of Indigenous Peoples Within the Framework of Human Security’, paper for the International Conference on Indigenous Peoples Right to Self-Determination and Nation States in Asia, Baguio, Philippines, 18–21 April 1999, at 2.

Nico Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (Cambridge University Press, 1997), 369.

United Nations Declaration on the Rights of Indigenous Peoples, General Assembly resolution 61/295 of 13 September 2007.

Historically, many indigenous groups in the United States (and elsewhere) were recognised in national courts as distinct political entities with legal independence (though still ‘dependent nations’), capable of entering into agreements and treaties. See for example Cherokee Nations v. Georgia, 30 US (5 Pet.) 1 (1831) and Worcester v. Georgia, 31 US (6 Pet.) 515 (1832).

See for instance, DeCoteau v. District County Court, 420 US 425 (1975) and Oliphant v. Suquamish Tribe, 98 S. Ct. 1011 (1978), as cited in Thomas D. Musgrave, Self-Determination and National Minorities (Oxford: Oxford University Press, 2000), 174.

Paul H. Brietzke, ‘Self-Determination, or Jurisprudential Confusion: Exacerbating Political Conflict,’ Self-Determination in International Law, ed., Robert McCorquodale (Aldershot, Dartmouth, 2000), 132.

Since the release of his final report, the United Nations has generally understood the term ‘indigenous’ in accordance with a ‘working definition’ proposed by José Martínez-Cobo, then-special rapporteur to the sub-commission. In his report entitled ‘Study of the Problem of Discrimination against Indigenous Populations’, Martínez-Cobo stated that ‘[i]ndigenous 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 societies now prevailing in those territories, or parts of them.’ This historical continuity may include: (a) partial or total occupation of ancestral lands; (b) common ancestry with the original inhabitants of that land; (c) distinct culture in any of its manifestations; (d) common usage of distinct language for communication; (e) residence in specific parts of a state or a particular region; or (f) other relevant factors. José Martinez-Cobo, ‘Study of the problem of discrimination against indigenous populations’, E/CN.4/Sub.2/1986/7 and Add.1–4, Volume V, Conclusions, Proposals and Recommendations, paras. 379–380.

Patrick Thornberry, International Law and the Rights of Minorities (Oxford: Clarendon Press, 1991), 164.

Ibid., at 395. Indigenous peoples have also been argued to have attributes similar to a nation, a community and a state.

Patricia Justino and Julie Litchfield, Economic Exclusion and Discrimination: The Experiences of Minorities and Indigenous Peoples (London: Minority Rights Group International), 2003, 4.

Erica-Irene A. Daes, ‘Working Paper by the Chairperson-Rapporteur’, Presented to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, E/CN.4/Sub.2/AC.4/1996/2, at paras. 35–36. Individual and group-based self-identification has been supported by various sources at the international and regional levels, including ILO Convention No. 169 and the Proposed American Declaration on the Rights of Indigenous Peoples, though these sources have often been qualified. See Martinez-Cobo, ‘Study of the Problem of Discrimination Against Indigenous Populations’, paras. 369 and 381. While recognising the strategic advantages of creating a ‘distinct, coherent and thus relatively homogenous pan-Indigenous social and political community’, Yin C. Paradies warns that such constructions carry a risk of essentialist boundary construction and policing, which can alienate and marginalise indigenous individuals and communities that do not meet rigid criteria. Paradies emphasises the need to construct a more accurate, and therefore authentic, definition of indigenous identity, which enables recognition and acceptance of the diverse and dynamic realities of indigenous peoples' lives. Paradies, ‘Beyond Black and White’.

As an example of the enduring nature of these claims and their underlying conviction, the Six Nations Confederacy petitioned the League of Nations for membership in 1923 and the United Nations in 1977. See Judith L. Andress and James E. Falkowski, Self-Determination: Indians and the United Nations – the Anomalous Status of America's ‘Domestic Dependent Nations,’ 1980, at 97 as cited in Musgrave, Self-Determination and National Minorities, 173.

Ian Brownlie, ‘The Rights of Peoples in Modern International Law’, in The Rights of Peoples ed. James Crawford (Oxford: Clarendon Press, 1988), 5.

Ibid., 16.

Ian Brownlie, Principles of Public International Law, 4th edition (Oxford: Clarendon Press, 1990), 287.

Since its earliest incarnations, this principle has come to be understood as an attribute of statehood, referring to the independence of states to act (within prescribed limits established by international law) and enter into relations with other states. It is also suggested that the essence of sovereignty is the authority or capacity of a state to determine its relations with outside powers. Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights (Philadelphia: University of Pennsylvania Press, 1990), 15.

Ibid., 14.

Gilbert, ‘Autonomy and Minority Groups’, 310.

One should use one's property in such a manner so as not to injure that of another. Schrijver, Sovereignty over Natural Resource, 233.

Joseph A. Camilleri and Jim Falk, The End of Sovereignty? The Politics of a Shrinking and Fragmenting World (Aldershot: Edward Elgar, 1992), 237.

Erica-Irene A. Daes, ‘Indigenous Peoples' Permanent Sovereignty over Natural Resources: Final Report of the Special Rapporteur, Erica-Irene A. Daes’, E/CN.4/Sub.2/2004/30, 13 July 2004, para. 6.

These discussions have taken place in various contexts, including the Permanent Forum on Indigenous Issues, the drafting sessions for the Declaration on the Rights of Indigenous Peoples, the multitude of efforts undertaken by members of the international community to facilitate resolution of long-standing land and resource disputes, and efforts to establish cooperative mechanisms to address the sustainable development of indigenous lands and resources. Ibid.

General Assembly resolution 1314 (XIII) of 12 December 1958, Article 1. This resolution established the Commission on Permanent Sovereignty over Natural Resources, which was requested to conduct a full survey of the status of permanent sovereignty over natural wealth and resources. See also General Assembly resolutions 523 (VI) of 12 January 1952 and 626 (VII) of 21 December 1952.

See General Assembly resolutions 1514 (XV) of 14 December 1960, 1515 (XV) of 15 December 1960 and 1803 (XVII) of 14 December 1962.

General Assembly resolution 3171 (XXVIII) of 17 December 1973.

Charter of Economic Rights and Duties of States, General Assembly resolution 3281 (XXIX) of 12 December 1974. Controversy has arisen in relation to the consistency of customary international law and particular provisions of the Charter. For more information, see Subrata Roy Chowdhury, ‘Permanent Sovereignty over Natural Resources’, in Permanent Sovereignty over Natural Resources in International Law: Principle and Practice, ed., Kamal Hossain and Subrata Roy Chowdhury (London: Frances Pinter, 1984), 2 and 4.

Charter of Economic Rights, Pre. See also Articles 2 and 3 of this Charter.

General Assembly resolution 1803, 14 December 1962, para. 4.

General Assembly resolution 3171, 17 December 1973.

General Assembly resolution 1803, 14 December 1962, para. 7.

ILO Convention No. 107 Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, 1957.

Ibid., Article 12 (1).

Ibid., Articles 11–13.

Vienna Declaration and Programme of Action, A/CONF.157/23, adopted on 25 June 1993, para. 20. Schrijver, Sovereignty Over Natural Resource, 312.

As the final draft of ILO Convention No. 169 did not incorporate the demands of indigenous peoples, it was adopted without their participation or support. ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries, 1989.

Ibid., Article 15 (1).

Ibid.

Daes, ‘Indigenous Peoples’, 89.

CERD, General Recommendation XXIII, Indigenous Peoples (1997).

Concluding Observations of the CERD Committee, A/57/18, 1 November 2002, paras. 315–343, para. 331.

Concluding Observations of the CERD Committee, CERD/C/CAN/CO/18, 25 May 2007, para. 21. The Committee then urged the Government of Canada to allocate sufficient resources to ‘remove the obstacles that prevent’ their enjoyment of those rights.

See Common Article 1 (2) of the ICCPR and ICESCR. Hannum notes that during the drafting period of the international Covenants in the late 1960s, ‘[c]oerced assimilation of minority groups and indigenous peoples was state policy in both the developed and developing world, as the centralization of state power became a hallmark of political activity…’, Hannum, Autonomy, Sovereignty, and Self-Determination, 454.

CCPR, General Comment No. 12, Article 1 (1984). HRI/GEN/1/Rev. 9 (Vol. I) (2008), at 183.

See Aikio, Pekka and Martin Scheinin, ed., Operationalizing the Right of Indigenous Peoples to Self-Determination (Turku: Åbo Akademi University Institute for Human Rights, 2000), as cited in Joshua Castellino, ‘Conceptual Difficulties and the Right to Indigenous Self-Determination', in Minorities, Peoples and Self-Determination: Essays in Honour of Patrick Thornberry, ed., Nazila Ghanea and Alexandra Xanthaki (Leiden: Martinus Nijhoff Publishers, 2005), 55–74, 61.

CCPR, General Comment No. 23, Article 27 (1994), HRI/GEN/1/Rev.9 (Vol. I) (2008), at 207. Crawford asserts that this provision ‘hover[s] uneasily between an individual and a communal right’. James Crawford, ‘Some Conclusions’, in The Rights of Peoples, ed., James Crawford (Oxford: Clarendon Press, 1988), 162. Indigenous groups assert they are distinct from minorities and either constitute a sui generis category or satisfy the generally accepted definition of a ‘people’, possessing a separate and distinct political status, constituting a ‘nation’. Thornberry, International Law, 395. Article 30 of the Convention on the Rights of the Child similarly provides, ‘[i]n those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language’, Convention on the Rights of the Child, A/RES/44/25 (1989).

See Sandra Lovelace v. Canada, Communication No. 24/1977, UN Doc. Supp. No. 40 (A/36/40) at 166, 19 September 1979; Ivan Kitok v. Sweden, Communication No. 197/1985, CCPR/C/33/D/197/1985, 27 July 1998; Ominayak and Lubicon Lake Band v. Canada, Communication No. 167/1984, UN Doc. Supp. No. (A/45/40), at 1, 26 March 1990.

Ilmari Länsman et al. v. Finland, Communication No. 511/1992, CCPR/C/52/D/511/1992, 26 October 1994, para. 9.4. See also Apirana Mahuika et al. v. New Zealand, Communication No. 547/1993, CCPR/C/70/D/547/1993, 27 October 2000, at 32.1, 33 and Appendix 1 and Ivan Kitok v. Sweden, Ibid., 9.2.

CCPR No. 23, General Comment, Article 27 (1994), para. 3.2.

Schrijver, Sovereignty Over Natural Resources, 319.

Ibid.

Declaration on the Rights of Indigenous Peoples, Preamble.

Ibid., Article 1. The unwavering recognition of collective rights in the declaration represents another important step forward. The international community has been relatively slow in recognising any kind of collective rights, instead preferring to rely on the individual rights that form the backbone of human rights treaties. More holistic in nature, the perspective of collective rights views individuals as part of a complex network of familial, social and political relations, each of which contain unique rights and responsibilities and comprise integral parts of individual identity. The collective is integrally linked to the composition of the individual. Not surprisingly, the ideological dissonance between these two positions has led to difficulties in the application of human rights law as it relates to indigenous rights. Siegfried Wiessner suggests that ‘individualizing’ of collective entitlements of rights defeats their purpose. Rather, a complete understanding of the nature of collective rights is essential to the establishment and operation of an effective system of protection for indigenous traditions and ways of life. See James Anaya, Indigenous Peoples in International Law (New York: Oxford University Press, 1996); and Siegfried Wiessner ‘Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis’, Harvard Human Rights Journal 12 (1999), 57–128.

Declaration on the Rights of Indigenous Peoples, Article 3.

Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine.

The Government of Australia formally endorsed the Declaration on 3 April 2009.

On 12 November 2010, the Canadian government formally endorsed the Declaration. In its press release, the government noted its previous and continuing concerns related to provisions ‘dealing with lands, territories and resources; free, prior and informed consent when used as a veto; self-government without recognition of the importance of negotiations; intellectual property; military issues; and the need to achieve an appropriate balance between the rights and obligations of Indigenous peoples, states and third parties.’ The statement went on to declare: ‘[w]e are now confident that Canada can interpret the principles expressed in the declaration in a manner that is consistent with our constitution and legal framework.’ In March 2010, a collective of indigenous, human rights and faith-based civil society organisations stressed that ‘human rights standards cannot merely condone or sustain the current practices and preferences of states, whether or not those practices and preferences are expressed in domestic law. To limit UN declarations in this way would defeat the purpose of having international standards, which are meant to inspire and guide improved protection for human rights, not simply reinforce the status quo’.

On 19 April 2010, the Government of New Zealand formally endorsed the Declaration with the following qualification: ‘In moving to support the Declaration, New Zealand both affirms those rights and reaffirms the legal and constitutional frameworks that underpin New Zealand's legal system. Those existing frameworks, while they will continue to evolve in accordance with New Zealand's domestic circumstances, define the bounds of New Zealand's engagement with the aspirational elements of the Declaration’.

On 20 April 2010, the United States government announced its intention to review its position on the declaration. Following consultations held with interested parties in October 2010, the United States government formally endorsed the Declaration and outlined its understanding of the right to self-determination and free, prior and informed consent.

Particularly as it may reflect international obligations of states under other sources of international law, including customary law and general principles of law. Jurisprudence of the International Court of Justice has indicated that General Assembly resolutions may serve ‘as the basis for the development of new customary norms over time’. International Labour Organization, ILO standards and the UN Declaration on the Rights of Indigenous Peoples: Information note for ILO staff and partners, ILO, Geneva, 2007.

In the 1975 Western Sahara case before the International Court of Justice, the court held that under the laws and principles of decolonisation, the indigenous inhabitants of the Western Sahara were entitled to self-determination and that it was inappropriate to apply the doctrine of terra nullius to land inhabited by indigenous peoples. Western Sahara (Advisory Opinion), ICJ Rep 12, 1975. In 1998, the Committee on the Elimination of Racial Discrimination issued a procedural decision expressing concern that the provisions of Australia's Native Title Act Amendments effectively extinguished or impaired the exercise of indigenous title rights and interests and thereby discriminated against native title-holders. CERD A/54/18, para. 21 (2), Decision 2 (54) on Australia, 18 March 1999, as cited in Daes, ‘Indigenous Peoples’, 80.

In a recent landmark ruling that has already begun to have wide-reaching impact, the African Commission on Human and Peoples' Rights ruled that the eviction of the Endorois indigenous community in Kenya was illegal. The Commission found that the Endorois are a distinct people whose culture, religion and traditional way of life are inextricably linked with their ancestral lands and that the Kenyan government had violated certain fundamental rights of the community, including their rights to cultural and religious freedom, property, natural resources located on their lands, and development. The Commission asserted that the government must delimit and demarcate their lands, in consultation with them and other neighbouring peoples' properties, and then grant title to the Endorois to guarantee their permanent use and enjoyment of their lands and to ensure their engagement as active stakeholders. It also recommended that the government pay adequate compensation and royalties for losses suffered and benefits of existing economic activities. Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of the Endorois Welfare Council v. the Republic of Kenya, Communication No. 276/2003, African Comm. Hum. & Peoples' Rights, 2 February 2010. For an analysis of the decision, see Lucy Claridge, ‘Landmark Ruling Provides Major Victory to Kenya's Indigenous Endorois’, Briefing, Minority Rights Group International, London, July 2010. In another case before the African Commission on Human and Peoples' Rights, the Commission determined that the failure of the Government of Nigeria to involve the Ogoni communities in decisions related to the development of Ogoniland and the lack of material benefits accruing to the local population (in addition to ‘destructive’ and ‘repressive’ tactics), constituted a violation of Article 21 of the Charter. The Social and Economic Rights Action Centre for Economic and Social Rights v. Nigeria (the Ogoni case), Communication No. 155/96, African Comm. Hum. & Peoples' Rights, 27 May 2002, para. 55. In an important case before the Inter-American Court of Human Rights, the Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, 31 August 2001, the Court affirmed that indigenous peoples have collective rights to their traditional lands, resources and environment and that the failure of a Government (in this case Nicaragua) to recognise, respect and enforce such rights could not be tolerated. It also asserted that unless the community lands were accurately demarcated, they would remain vulnerable to invasion by parties seeking natural resource exploitation, increasing the potential for social unrest and violence. Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Inter-Am. Ct. Hum. Rts. (Ser. C), Case No. 79 (Judgment of 31 August 2001).

At the national level, an important decision was handed down by the Supreme Court of Appeal of South Africa in Richtersveld Community and Others. In this case, the Court held that while mineral rights were frequently reserved to states and ‘in lands owned by or reserved to’ indigenous peoples, where these lands are appropriated for government use, adequate compensation should be given to the owners, and should include other equally suitable land. Richtersveld Community and Others v. Alexkor Limited and the Government of the Republic of South Africa, Case 488/2001, Supreme Court of Appeal of South Africa, 2003.

A more controversial precedent was set by the Supreme Court of Canada in Delgamuukw et al. v. Attorney General of British Columbia, in which the Court held that although aboriginal title (to land) is sui generis, inalienable and distinct from other proprietary interests, aboriginal title could be infringed upon by the federal and provincial governments provided that the infringement could be demonstrated to further a ‘compelling and substantial legislative objective’ that is consistent with the ‘fiduciary relationship’ between the state and aboriginal peoples. Delgamuukw et al. v. Attorney General of British Columbia [1997] 3 S.C.R. 1010.

Daes, ‘Indigenous Peoples’, 80. The CERD Committee has expressed its concern about the primary emphasis on litigation to settle Aboriginal land claims in Canada due to the ‘strongly adversarial positions taken by the federal and provincial governments,’ despite recognition of the inherent right to self-government of Aboriginal peoples found in Section 35 of the Constitution Act, 1982. Concluding Observations of CERD, CERD/C/CAN/CO/18, para. 22. Many aboriginal justice systems, on the other hand, are premised on principles of peace and harmony. These principles are generally translated into a holistic conception of conflict resolution that respects traditional Aboriginal rights and laws while emphasising efforts to restore peace in a community, and the reconciliation of the accused with her/his self and the individual and/or family members of the person who has been wronged.

Anaya, Indigenous Peoples in International Law, 105.

Schrijver, Sovereignty Over Natural Resources, 319.

Protection of this principle was first mentioned in Article 10 of the Covenant of the League of Nations and in General Assembly resolutions 1514 and 2625. Concern about territorial integrity has likewise made its way into human rights instruments such as the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities and Article XXVI of the Proposed American Declaration. These documents note that no provisions should be understood as ‘permitting any activity contrary to the purposes and principles of the United Nations, including sovereign equality, territorial integrity and political independence of States’.

During a meeting of the Inter-Sessional Working Group on the draft Declaration, government delegates expressed two fundamental concerns regarding the right of indigenous peoples to self-determination, questioning whether protection of the right to self-determination provided entailed a right to secession and if the right to land and natural resources was an ‘integral part of the right of self-determination.’ Commission on Human Rights, Report of the working group established in accordance with Commission on Human Rights resolution 1995/32, E/CN.4/2003/92, 6 January 2003, para. 19.

Hannum, Autonomy, Sovereignty and Self-Determination, 463.

Ibid., at 463–464. Patrick Thornberry, ‘The Democratic or Internal Aspect of Self-Determination with Some Remarks on Federalism’, Modern Law of Self-Determination, ed., Christian Tomuschat (Martinus Nijhoff, Dordrect, 1993), 101–138, 132–133. In line with the prevention of internal conflicts, Patrick Thornberry has offered an alternative perspective. Rather than viewing these defensive arguments as strictly negative, Thornberry proposes looking to their potential for assisting self-determination claims through the promotion of mutuality and tolerance. For example, the principle of territorial integrity might be relied upon to defend the rights of groups that find themselves subject to forced resettlement, population transfers and mass expulsions since these disturbances violate both the integrity of the whole and the right to self-determination.

This was one of the conclusions of a meeting of experts held to discuss implementation of self-determination as a contribution to conflict prevention. See Michael C. van Walt van Praag, Report of the International Conference of Experts on the Implementation of the Right to Self-Determination as a Contribution to Conflict Prevention, UNESCO, Barcelona, 21 to 27 November 1998. In Sidiropoulos and Others v. Greece, the European Court of Human Rights held that the right to self-determination may be pursued in partnership with a state without destroying its territorial integrity and cannot automatically justify a prohibition of the group's assemblies. Sidiropoulos and Others v. Greece, ECtHR, App. No. 26695/95 (July 10, 1998), para. 40. See also United Communist Party of Turkey and Others v. Turkey, ECtHR, App. No. 19392/92 (30 January 1998), para. 60. For a discussion regarding the possibility of obtaining recognition of a group's right to self-determination under the ECHR, see Crawford, The Rights of Peoples, 347.

Hannum, Autonomy, Sovereignty and Self-Determination, 467.

ICCPR, Article 2.

Autonomy in the modern context was first presented by the League of Nations as a system of minority rights at the end of the First World War. These rights were largely eroded in the immediate post Second World War period, wherein the concepts of individual human rights and non-discrimination took on primacy until development of the Universal Declaration of Human Rights in 1945 (see Articles 1, 2, 18, 19, 20, 26). Javid Rehman, International Human Rights Law: A Practical Approach (Pearson Education Limited: Essex, 2003), 312.

Hector Gros Espiell, special rapporteur of the sub-commission on prevention of discrimination and protection of minorities, The Right to Self-Determination: Implementation of United Nations Resolutions, E/CN.4/Sub.2/405/Rev.1 (1980), 43. However, there is some legal and practical evidence that self-determination has been conceived of beyond this limitation.

As envisioned by Common Article 1 of ICCPR and ICESCR; Articles 1 (2) and 55 of the UN Charter and GA resolutions 1514 and 2625.

Reference re. Secession of Quebec, 20 August 1998, para. 138, I.L.M. 1340, 1373 (1998). See generally Alfredsson, Gudmundhur, ‘The Right of Self-Determination and Indigenous Peoples’, in Modern Law of Self-Determination, ed., Christian Tomuschat (Martinus Nijhoff, Dordrect, 1993), at 46–47; Iorns, Catherine J., ‘Indigenous Peoples and Self-Determination: Challenging State Sovereignty’, 24 Case W. Res. J. Int'l L. 199, 1992; Daes, Erica-Irene A., Explanatory Note Concerning the Draft Declaration on the Rights of Indigenous Peoples. E/CN.4/Sub.2/1993/26/Add.1, 1993; Gilbert, ‘Autonomy and Minority Groups’, 332–339.

Gudmundur Alfredsson, ‘Indigenous Peoples and Autonomy’, Autonomy: Applications and Implications, ed., Markku Suksi (The Hague:Kluwer Law International, 1998), 125–137, 133.

Hannum, Autonomy, Sovereignty and Self-Determination, 469.

Alfredsson, ‘Indigenous Peoples and Autonomy’, 130.

Schrijver, Sovereignty Over Natural Resource, 316.

Ibid., 341.

Gilbert, ‘Autonomy and Minority Groups’, 352.

Hannum, Autonomy, Sovereignty and Self-Determination, 467.

Ibid., 468. Ian Brownlie has suggested that federalism ‘provides a special capacity and a flexibility in facing cultural diversity…[and] is probably better able than any other system to provide a regime of stable autonomy which provides group freedoms within a wider political cosmos and keeps the principle of nationality in line with ideas of mutuality and genuine coexistence of peoples. In fact, there is a sort of synthesis between the question of group rights as a human rights matter and the principle of self-determination. The recognition of group rights, more especially when this is related to territorial rights and regional autonomy, represents the practical and internal working out of the concept of self-determination’. Brownlie, ‘The Rights of Peoples in Modern International Law’, 6.

See the Nunavut Land Claims Agreement (S.C. 1993, c. 29) Canada regarding the establishment of the province of Nunavut. Other examples of indigenous autonomous arrangements include the Greenland Home Rule, Sami people of Finland and the Comarca of San Blas arrangement of the Kuna Yala peoples of Panama. For a review of these arrangements, see John B. Henriksen, ‘Key principles in implementing ILO Convention No 169’, Research on best practices for the implementation of the principles of ILO Convention No. 169: Case study No. 7, ILO, Geneva, 2008.

Nunavut Land Claims Agreement (S.C. 1993, c. 29). See also the Nunavik Inuit Land Claims Agreement (S.C. 2008, c. 2), which outlines clearly defined and constitutionally protected on shore and offshore land and resource rights for the Nunavik Marine Region and in the Nunavik Inuit Settlement Area in Labrador.

Although this area was strategically chosen by the Inuit and their negotiators, the common practice of state ownership of sub-surface resources is notoriously discriminatory towards indigenous peoples. States that have recognised territorial autonomy by a minority or indigenous group generally retain sovereignty over sub-surface resources and their exploitation as an aspect of their ‘statal patrimony’ to secure the economic viability of the state. Part of the difficulty lies in linking sub-surface resources to a particular culture. Hannum, Autonomy, Sovereignty, and Self-Determination, 465. Erica-Irene A. Daes forcefully adds that the system of state ownership of sub-surface rights is clearly discriminatory towards indigenous peoples in its operation, primarily as indigenous peoples were not generally participants in the drafting of State Constitutions and did not consent to the transfer of their sub-surface rights to the States. Daes, ‘Indigenous Peoples’, 88.

Nunavut Act, C.R.C. 79 (1) (1993), para. 2.7.1 (a) and (b). The Inuit also had to agree ‘on their behalf, and on behalf of their heirs, descendants and successors not to assert any cause of action, action for a declaration, claim or demand of whatever kind or nature which they ever had, now have or may hereafter have against Her Majesty The Queen in Right of Canada or any province, the government of any territory or any person based on any aboriginal claims, rights, title or interests in and to lands and waters described in sub-section (a)’. Since 1998, the Canadian government has withdrawn the requirement for an express reference to extinguishment of Aboriginal rights and titles in comprehensive claims agreements or in settlement legislation ratifying the agreement and instead replaced it with the ‘modified rights model’ and the ‘non-assertion model.’

In its Concluding Observations on Canada's fifth periodic report to the Human Rights Committee, the Committee expressed concern that the proposed alternative policies to extinguishment of inherent aboriginal rights in modern treaties may in practice amount to extinguishment and therefore stressed that the government should ‘re-examine its policy and practices to ensure they do not result in extinguishment of inherent aboriginal rights. Concluding Observations of the Human Rights Committee, CCPR/C/CAN/CO/5, 20 April 2006, para. 8. Both the ICESCR Committee and the CERD Committee have expressed similar concerns about the ‘imperceptible differences’ between extinguishment and surrender models and the novel ‘modification’ and ‘non-assertion’ policies. Concluding Observations of the ICESCR Committee, E/C.12/CAN/CO/4-5, 22 May 2006, para. 16 and Concluding Observations of the CERD Committee, CERD/C/CAN/CO/18, para. 22.

Concluding Observations of the ICESCR Committee, E/C.12/CAN/CO/4-5, 22 May 2006, para. 37.

For more information, see the Reports of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, James Anaya: Preliminary note on the situation of Sami people in the Sápmi region spanning Norway, Sweden and Finland, A/HRC/15/37/Add.6, 7 July 2010; and The situation of the Sami people in the Sápmi region of Norway, Sweden and Finland, Advance unedited version, A/HRC/18/XX/Add.Y, 12 January 2011.

Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, 2011, ibid., para. 34.

The first pan-Sami institution, the Sami Council, was established in 1956 and was the main representative body of the Sami people. It is now a non-governmental organisation promoting the human rights of the Sami people that works in cooperation with the Sami Parliaments and the Sami Parliamentary Council.

Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, 2011, paras. 37–45, 75 and 79. It should be noted that neither Finland nor Sweden have ratified ILO Convention No. 169.

Sami people living in the Russian Federation. The previous Finnish government indicated that it would not ratify the Convention, and the position of the recently formed coalition is not yet known. The special rapporteur called on Nordic governments to ensure that the negotiation framework allows for the equal participation of Sami Parliaments, Report of the Special Rapporteur, 2011, para 74.

CERD GR XXIII, para. 3.

Ibid., para. 4 (a).

Ibid., para. 4 (c).

Ibid., para. 4 (d).

Gilbert, ‘Autonomy and Minority Groups’, 351.

Castellino, ‘Conceptual Difficulties’, 66.

Ibid., 68.

For an interesting allusion to the possible suspension of the intertemporal rule to address the historical illegal annexation of indigenous lands, see Castellino, ‘Conceptual Difficulties’, 69.

Fergus MacKay, Addressing Past Wrongs: Indigenous Peoples and Protected Areas: The Right to Restitution of Lands and Resources, FPP Occasional Paper, Forest Peoples Programme, Moreton-in-Marsh, October 2002/January 2003.

Castellino, ‘Conceptual Difficulties’, 63.

Schrijver, Sovereignty over Natural Resource, 133.

Indeed, the Human Rights Committee has demonstrated its willingness to recognise the claims of indigenous peoples in a separate category, as evidenced in Hopu and Bessert v. France, Communication No. 549/1993, CCPR/C/51/D/549/1993/Rev.1 (29 December 1997), as cited in Castellino, ‘Conceptual Difficulties’, 60.

The Expert Mechanism on the Rights of Indigenous Peoples was established by the Human Rights Council on 14 December 2007 under resolution 6/36 as a subsidiary body and is composed of five independent experts on the rights of indigenous peoples.

The Partnership is an inter-agency initiative between the International Labour Organization, the United Nations Office of the High Commissioner for Human Rights, the United Nations Children's Fund and the United Nations Development Programme. It is the first global inter-agency initiative with a programmatic focus on indigenous peoples at the country level and is supported by strategic interventions at regional and international levels. A UNIPP Multi-Donor Trust Fund was set up in May 2010 to advance the objectives of the partnership and to generate and manage the resources.

As required by Article 2.7 of the UN Charter.

In 2007, 11 indigenous nations (with representatives from Australia, Canada, Aotearoa [New Zealand] and the United States) reached agreement on the Treaty of Indigenous Nations. The Treaty establishes ‘an international political and economic alliance,’ known as the United League of Indigenous Nations, to deal with a variety of issues, including bringing cultural properties under the protection of the laws of indigenous nations and protecting the human rights of indigenous peoples. It should be noted that the League itself has come under criticism from some indigenous activists and scholars for its processes of participation, its reliance on a particular economic development model and for the governmental and non-governmental organisation affiliations of some of its members. The League meets twice a year and members agree to participate in periodic reviews of its activities. More information is available at http://www.indigenousnationstreaty.org/home.html.

Brownlie, ‘The Rights of Peoples in Modern International Law’, 15.

Brownlie observes that meaningful debate around the issue of the applicability of human rights norms to indigenous communities has been inhibited primarily due to fears that such discussions will be branded imperialist and paternalistic (ibid.). It might equally be argued that it is paternalistic to infer that indigenous cultures do not or will not protect fundamental human rights in their systems of governance and justice, suggesting a static and oppressive culture.

Although focused on the contention that armed opposition groups may be capable of violating human rights, Nigel Rodley's general analysis may be applied in this context. Rodley argues ‘human rights’ are a set of ‘rules that mediate the relationship between, on the one hand, governments or other entities exercising effective power [over a significant segment of a population] analogous to that of governments and, on the other, those who are subject to that power’. Nigel S. Rodley, ‘Can Armed Opposition Groups Violate Human Rights?’ in Human Rights in the Twenty-first Century: A Global Challenge, ed. Kathleen E. Mahoney and Paul Mahoney (Dordrecht: Martinus Nijhoff, 1993), 297–318, 303.

Wiessner, ‘Rights and Status of Indigenous Peoples’, 121.

In this case, Sandra Lovelace, a Maliseet Indian from the Tobique Reserve, married a non-Indian man and subsequently lost her Indian status in accordance with Section 12 (1) (b) of the Indian Act. While the Band Council opposed the return of Ms Lovelace to the reserve following her divorce, the Human Rights Committee found that in being denied the legal right to reside on the reserve, the Government of Canada had breached her rights under Article 27 of the ICCPR.