Statement to the Commission on Human Rights on self determination, land and resources

22 November 2000

Joint statement of the Mäori Legal Service and Ka Lahui Hawai'i

To the Commission on Human Rights, Open ended intersessional working group on the UN Declaration on the Rights of Indigenous Peoples, 6th session, Geneva, 20 November - 1 December 2000

Agenda item - General statements, self determination, land and resources 22 November 2000

For the purposes of efficiency I am making a joint statement on behalf of the Mäori Legal Service and Ka Lahui Hawai'i.

Our delegation has been involved with the UN Declaration on the Rights of Indigenous Peoples since its earliest days in WGIP. Since the establishment of the WGIP in 1982 Indigenous representatives have consistently stated that the Right of Self Determination is the fundamental underlying principle of the Declaration.

It is the basic right from which all other rights flow. It is the essential prerequisite for the enjoyment of all other rights. Without it all the other articles are meaningless. It is a basic tenet of international law that human rights must be applied universally and uniformly.

The Right of Self Determination of all peoples is contained in a litany of UN instruments including the UN Charter and the International Covenants on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

The International Court of Justice has also confirmed the Right of Self Determination of all peoples as a rule of general customary law. Similarly,the Human Rights Committee has made it clear that Indigenous Peoples have the Right to Self Determination.

In the face of this overwhelming collection of instruments and jurisprudence, governments cannot possibly deny the existence of the Right to Self Determination. Instead they seek to limit of redefine it.

The latest buzzword used by the CANZUS alliance and most regrettably the Norwegian government is a right to 'internal self determination'.

This is meaningless in international law and is simply the latest attempt by these governments to subordinate Indigenous Peoples to their domination and control. These actions simply maintain the ethos of colonial domination which the Declaration seeks to remedy.

It is clear that many governments are attempting to make the Declaration subject to their domestic policies and regimes. For example, the NZ governments negotiating brief states that the Declaration should:-

" as a general principle, the Declaration should reflect and be consistent with New Zealand law and policy where relevant, rather than New Zealand's law and policy being driven by the Declaration"

The New Zealand brief also states inter alia that articles of the Declaration should also be consistent with:-

• New Zealand's legal and constitutional framework
• the Treaty of Waitangi
• Legal, judicial and taxation systems
• Land and resources policy
• Traditional knowledge and social policy

The question then must be asked, are international human rights instruments now to be subject and subordinate to domestic legislation and policy?

If so what recognition will the Declaration give to Indigenous Peoples over and above that available within their own countries. We suggest that such an approach to human rights standard setting is inconsistent with international practice and will reduce the Declaration to cosmetic window dressing.

We remind governments that the Declaration is an affirmational document. It is morally binding. It is not a Treaty or convention binding in international or domestic law. Regrettably many governments are approaching it in this fashion.

It is now clear that many governments are not prepared to abide by standards that they have ratified and adopted in other international instruments. This is discriminatory and racist. Indigenous Peoples will continue to expose these discriminatory double standards in other fora during the next year.

Earlier this morning, Mr Littlechild referred to a New Zealand government document noting that Canada had a strategy of "negotiating without Indigenous participation". We therefore welcome your assurance that no decision of the working group would be made without our consent. We note that this is a formal session of record and therefore welcome our interventions inclusion in the body of the report of this working group.

Thank you Mr Chair

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