Cross-referencing: Chapter 4(B)(6), “Self-Determination”, pp. 327-329
On 13 September, 2007, the UN General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (“Declaration”). The Declaration differs only slightly from the draft previously adopted and recommended to the General Assembly by the UN Human Rights Council. In particular the Declaration continues to recognize that “[i]ndigenous peoples have the right to self-determination”, as well as to define the scope of that right by reference to “autonomy or self-government in matters relating to their internal and local affairs”. Similarly, Articles 5, 8-14, 16, 18-20, 23, 26-28, 30 and 32-34 of the Declaration continue to recognize the right of indigenous peoples to varying degrees of autonomy with respect to indigenous institutions, traditions, customs and traditional lands, but apparently all within the greater context of the state in which they live. In other words, the essential thrust of the Declaration appears to be elaboration of the right to internal, rather than external, self-determination of indigenous peoples.
Perhaps the most significant addition by the General Assembly to the draft Declaration forwarded to it by the Human Rights Council is Article 46, which cautions that “[n]othing in this Declaration may 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”. It would appear that this amendment was intended to address concerns expressed by the Assembly of the African Union over the Declaration’s provisions on self-determination and their implications for territorial integrity. The addition of Article 46 suggests a rather cautious approach by states to the potential generalization of a right of self-determination in any way that might compromise the territorial integrity of existing states.
Canada was one of only four states (along with Australia, New Zealand and the United States) to vote against the Declaration in the General Assembly. In explaining its vote, Canada cited concerns with ambiguous or overly restrictive language on such issues as self-government, lands and resources, and asserted that its provisions do not represent customary international law. The Government of Canada has since published a position paper further explaining its opposition to the Declaration.