Native Title Report 2009 - Appendix 4

Native Title Report 2009

Appendix 4: United Nations Declaration on the Rights of Indigenous Peoples

Adopted by General Assembly Resolution 61/295 on 13
September 2007

The General Assembly,

Guided by the purposes and principles of the Charter of the United
Nations, and good faith in the fulfilment of the obligations assumed by States
in accordance with the Charter,

Affirming that indigenous peoples are equal to all other peoples,
while recognizing the right of all peoples to be different, to consider
themselves different, and to be respected as such,

Affirming also that all peoples contribute to the diversity and
richness of civilizations and cultures, which constitute the common heritage of
humankind,

Affirming further that all doctrines, policies and practices based on
or advocating superiority of peoples or individuals on the basis of national
origin or racial, religious, ethnic or cultural differences are racist,
scientifically false, legally invalid, morally condemnable and socially
unjust,

Reaffirming that indigenous peoples, in the exercise of their rights,
should be free from discrimination of any kind,

Concerned that indigenous peoples have suffered from historic
injustices as a result of, inter alia, their colonization and dispossession of
their lands, territories and resources, thus preventing them from exercising, in
particular, their right to development in accordance with their own needs and
interests,

Recognizing the urgent need to respect and promote the inherent rights
of indigenous peoples which derive from their political, economic and social
structures and from their cultures, spiritual traditions, histories and
philosophies, especially their rights to their lands, territories and
resources,

Recognizing also the urgent need to respect and promote the rights of
indigenous peoples affirmed in treaties, agreements and other constructive
arrangements with States,

Welcoming the fact that indigenous peoples are organizing themselves
for political, economic, social and cultural enhancement and in order to bring
to an end all forms of discrimination and oppression wherever they occur,

Convinced that control by indigenous peoples over developments
affecting them and their lands, territories and resources will enable them to
maintain and strengthen their institutions, cultures and traditions, and to
promote their development in accordance with their aspirations and needs,

Recognizing that respect for indigenous knowledge, cultures and
traditional practices contributes to sustainable and equitable development and
proper management of the environment,

Emphasizing the contribution of the demilitarization of the lands and
territories of indigenous peoples to peace, economic and social progress and
development, understanding and friendly relations among nations and peoples of
the world,

Recognizing in particular the right of indigenous families and
communities to retain shared responsibility for the upbringing, training,
education and well-being of their children, consistent with the rights of the
child,

Considering that the rights affirmed in treaties, agreements and other
constructive arrangements between States and indigenous peoples are, in some
situations, matters of international concern, interest, responsibility and
character,

Considering also that treaties, agreements and other constructive
arrangements, and the relationship they represent, are the basis for a
strengthened partnership between indigenous peoples and States,

Acknowledging that the Charter of the United Nations, the
International Covenant on Economic, Social and Cultural Rights and the
International Covenant on Civil and Political Rights, as well as the Vienna
Declaration and Programme of Action, affirm the fundamental importance of the
right to self-determination of all peoples, by virtue of which they freely
determine their political status and freely pursue their economic, social and
cultural development,

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,

Convinced that the recognition of the rights of indigenous peoples in
this Declaration will enhance harmonious and cooperative relations between the
State and indigenous peoples, based on principles of justice, democracy, respect
for human rights, non-discrimination and good faith,

Encouraging States to comply with and effectively implement all their
obligations as they apply to indigenous peoples under international instruments,
in particular those related to human rights, in consultation and cooperation
with the peoples concerned,

Emphasizing that the United Nations has an important and continuing
role to play in promoting and protecting the rights of indigenous peoples,

Believing that this Declaration is a further important step forward
for the recognition, promotion and protection of the rights and freedoms of
indigenous peoples and in the development of relevant activities of the United
Nations system in this field,

Recognizing and reaffirming that indigenous individuals are entitled
without discrimination to all human rights recognized in international law, and
that indigenous peoples possess collective rights which are indispensable for
their existence, well-being and integral development as peoples,

Recognizing that the situation of indigenous peoples varies from
region to region and from country to country and that the significance of
national and regional particularities and various historical and cultural
backgrounds should be taken into consideration,

Solemnly proclaims the following United Nations Declaration on the
Rights of Indigenous Peoples as a standard of achievement to be pursued in a
spirit of partnership and mutual respect:

Article 1

Indigenous peoples have the right to the full enjoyment, as a collective or
as individuals, of all human rights and fundamental freedoms as recognized in
the Charter of the United Nations, the Universal Declaration of Human Rights and
international human rights law.

Article 2

Indigenous peoples and individuals are free and equal to all other peoples
and individuals and have the right to be free from any kind of discrimination,
in the exercise of their rights, in particular that based on their indigenous
origin or identity.

Article 3

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.

Article 4

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.

Article 5

Indigenous peoples have the right to maintain and strengthen their distinct
political, legal, economic, social and cultural institutions, while retaining
their right to participate fully, if they so choose, in the political, economic,
social and cultural life of the State.

Article 6

Every indigenous individual has the right to a nationality.

Article 7

Indigenous individuals have the rights to life, physical and mental
integrity, liberty and security of person.
Indigenous peoples have the collective right to live in freedom, peace and
security as distinct peoples and shall not be subjected to any act of genocide
or any other act of violence, including forcibly removing children of the group
to another group.

Article 8

Indigenous peoples and individuals have the right not to be subjected to
forced assimilation or destruction of their culture.
States shall provide effective mechanisms for prevention of, and redress
for:
- (a) Any action which has the aim or effect of depriving them of their
  integrity as distinct peoples, or of their cultural values or ethnic
  identities;
- (b) Any action which has the aim or effect of dispossessing them of their
  lands, territories or resources;
- (c) Any form of forced population transfer which has the aim or effect of
  violating or undermining any of their rights;
- (d) Any form of forced assimilation or integration;
- (e) Any form of propaganda designed to promote or incite racial or ethnic
  discrimination directed against them.

Article 9

Indigenous peoples and individuals have the right to belong to an indigenous
community or nation, in accordance with the traditions and customs of the
community or nation concerned. No discrimination of any kind may arise from the
exercise of such a right.

Article 10

Indigenous peoples shall not be forcibly removed from their lands or
territories. No relocation shall take place without the free, prior and informed
consent of the indigenous peoples concerned and after agreement on just and fair
compensation and, where possible, with the option of return.

Article 11

Indigenous peoples have the right to practise and revitalize their cultural
traditions and customs. This includes the right to maintain, protect and develop
the past, present and future manifestations of their cultures, such as
archaeological and historical sites, artefacts, designs, ceremonies,
technologies and visual and performing arts and literature.
States shall provide redress through effective mechanisms, which may include
restitution, developed in conjunction with indigenous peoples, with respect to
their cultural, intellectual, religious and spiritual property taken without
their free, prior and informed consent or in violation of their laws, traditions
and customs.

Article 12

Indigenous peoples have the right to manifest, practise, develop and teach
their spiritual and religious traditions, customs and ceremonies; the right to
maintain, protect, and have access in privacy to their religious and cultural
sites; the right to the use and control of their ceremonial objects; and the
right to the repatriation of their human remains.
States shall seek to enable the access and/or repatriation of ceremonial
objects and human remains in their possession through fair, transparent and
effective mechanisms developed in conjunction with indigenous peoples
concerned.

Article 13

Indigenous peoples have the right to revitalize, use, develop and transmit
to future generations their histories, languages, oral traditions, philosophies,
writing systems and literatures, and to designate and retain their own names for
communities, places and persons.
States shall take effective measures to ensure that this right is protected
and also to ensure that indigenous peoples can understand and be understood in
political, legal and administrative proceedings, where necessary through the
provision of interpretation or by other appropriate
means.

Article 14

Indigenous peoples have the right to establish and control their educational
systems and institutions providing education in their own languages, in a manner
appropriate to their cultural methods of teaching and learning.
Indigenous individuals, particularly children, have the right to all levels
and forms of education of the State without discrimination.
States shall, in conjunction with indigenous peoples, take effective
measures, in order for indigenous individuals, particularly children, including
those living outside their communities, to have access, when possible, to an
education in their own culture and provided in their own
language.

Article 15

Indigenous peoples have the right to the dignity and diversity of their
cultures, traditions, histories and aspirations which shall be appropriately
reflected in education and public information.
States shall take effective measures, in consultation and cooperation with
the indigenous peoples concerned, to combat prejudice and eliminate
discrimination and to promote tolerance, understanding and good relations among
indigenous peoples and all other segments of society.

Article 16

Indigenous peoples have the right to establish their own media in their own
languages and to have access to all forms of non-indigenous media without
discrimination.
States shall take effective measures to ensure that State-owned media duly
reflect indigenous cultural diversity. States, without prejudice to ensuring
full freedom of expression, should encourage privately owned media to adequately
reflect indigenous cultural diversity.

Article 17

Indigenous individuals and peoples have the right to enjoy fully all rights
established under applicable international and domestic labour law.
States shall in consultation and cooperation with indigenous peoples take
specific measures to protect indigenous children from economic exploitation and
from performing any work that is likely to be hazardous or to interfere with the
child’s education, or to be harmful to the child’s health or
physical, mental, spiritual, moral or social development, taking into account
their special vulnerability and the importance of education for their
empowerment.
Indigenous individuals have the right not to be subjected to any
discriminatory conditions of labour and, inter alia, employment or
salary.

Article 18

Indigenous peoples have the right to participate in decision-making in
matters which would affect their rights, through representatives chosen by
themselves in accordance with their own procedures, as well as to maintain and
develop their own indigenous decision-making institutions.

Article 19

States shall consult and cooperate in good faith with the indigenous peoples
concerned through their own representative institutions in order to obtain their
free, prior and informed consent before adopting and implementing legislative or
administrative measures that may affect them.

Article 20

Indigenous peoples have the right to maintain and develop their political,
economic and social systems or institutions, to be secure in the enjoyment of
their own means of subsistence and development, and to engage freely in all
their traditional and other economic activities.
Indigenous peoples deprived of their means of subsistence and development
are entitled to just and fair redress.

Article 21

Indigenous peoples have the right, without discrimination, to the
improvement of their economic and social conditions, including, inter alia, in
the areas of education, employment, vocational training and retraining, housing,
sanitation, health and social security.
States shall take effective measures and, where appropriate, special
measures to ensure continuing improvement of their economic and social
conditions. Particular attention shall be paid to the rights and special needs
of indigenous elders, women, youth, children and persons with
disabilities.

Article 22

Particular attention shall be paid to the rights and special needs of
indigenous elders, women, youth, children and persons with disabilities in the
implementation of this Declaration.
States shall take measures, in conjunction with indigenous peoples, to
ensure that indigenous women and children enjoy the full protection and
guarantees against all forms of violence and
discrimination.

Article 23

Indigenous peoples have the right to determine and develop priorities and
strategies for exercising their right to development. In particular, indigenous
peoples have the right to be actively involved in developing and determining
health, housing and other economic and social programmes affecting them and, as
far as possible, to administer such programmes through their own
institutions.

Article 24

Indigenous peoples have the right to their traditional medicines and to
maintain their health practices, including the conservation of their vital
medicinal plants, animals and minerals. Indigenous individuals also have the
right to access, without any discrimination, to all social and health
services.
Indigenous individuals have an equal right to the enjoyment of the highest
attainable standard of physical and mental health. States shall take the
necessary steps with a view to achieving progressively the full realization of
this right.

Article 25

Indigenous peoples have the right to maintain and strengthen their
distinctive spiritual relationship with their traditionally owned or otherwise
occupied and used lands, territories, waters and coastal seas and other
resources and to uphold their responsibilities to future generations in this
regard.

Article 26

Indigenous peoples have the right to the lands, territories and resources
which they have traditionally owned, occupied or otherwise used or
acquired.
Indigenous peoples have the right to own, use, develop and control the
lands, territories and resources that they possess by reason of traditional
ownership or other traditional occupation or use, as well as those which they
have otherwise acquired.
States shall give legal recognition and protection to these lands,
territories and resources. Such recognition shall be conducted with due respect
to the customs, traditions and land tenure systems of the indigenous peoples
concerned.

Article 27

States shall establish and implement, in conjunction with indigenous peoples
concerned, a fair, independent, impartial, open and transparent process, giving
due recognition to indigenous peoples’ laws, traditions, customs and land
tenure systems, to recognize and adjudicate the rights of indigenous peoples
pertaining to their lands, territories and resources, including those which were
traditionally owned or otherwise occupied or used. Indigenous peoples shall have
the right to participate in this process.

Article 28

Indigenous peoples have the right to redress, by means that can include
restitution or, when this is not possible, just, fair and equitable
compensation, for the lands, territories and resources which they have
traditionally owned or otherwise occupied or used, and which have been
confiscated, taken, occupied, used or damaged without their free, prior and
informed consent.
Unless otherwise freely agreed upon by the peoples concerned, compensation
shall take the form of lands, territories and resources equal in quality, size
and legal status or of monetary compensation or other appropriate
redress.

Article 29

Indigenous peoples have the right to the conservation and protection of the
environment and the productive capacity of their lands or territories and
resources. States shall establish and implement assistance programmes for
indigenous peoples for such conservation and protection, without
discrimination.
States shall take effective measures to ensure that no storage or disposal
of hazardous materials shall take place in the lands or territories of
indigenous peoples without their free, prior and informed consent.
States shall also take effective measures to ensure, as needed, that
programmes for monitoring, maintaining and restoring the health of indigenous
peoples, as developed and implemented by the peoples affected by such materials,
are duly implemented.

Article 30

Military activities shall not take place in the lands or territories of
indigenous peoples, unless justified by a relevant public interest or otherwise
freely agreed with or requested by the indigenous peoples concerned.
States shall undertake effective consultations with the indigenous peoples
concerned, through appropriate procedures and in particular through their
representative institutions, prior to using their lands or territories for
military activities.

Article 31

Indigenous peoples have the right to maintain, control, protect and develop
their cultural heritage, traditional knowledge and traditional cultural
expressions, as well as the manifestations of their sciences, technologies and
cultures, including human and genetic resources, seeds, medicines, knowledge of
the properties of fauna and flora, oral traditions, literatures, designs, sports
and traditional games and visual and performing arts. They also have the right
to maintain, control, protect and develop their intellectual property over such
cultural heritage, traditional knowledge, and traditional cultural
expressions.
In conjunction with indigenous peoples, States shall take effective measures
to recognize and protect the exercise of these rights.

Article
32

Indigenous peoples have the right to determine and develop priorities and
strategies for the development or use of their lands or territories and other
resources.
States shall consult and cooperate in good faith with the indigenous peoples
concerned through their own representative institutions in order to obtain their
free and informed consent prior to the approval of any project affecting their
lands or territories and other resources, particularly in connection with the
development, utilization or exploitation of mineral, water or other
resources.
States shall provide effective mechanisms for just and fair redress for any
such activities, and appropriate measures shall be taken to mitigate adverse
environmental, economic, social, cultural or spiritual
impact.

Article 33

Indigenous peoples have the right to determine their own identity or
membership in accordance with their customs and traditions. This does not impair
the right of indigenous individuals to obtain citizenship of the States in which
they live.
Indigenous peoples have the right to determine the structures and to select
the membership of their institutions in accordance with their own
procedures.

Article 34

Indigenous peoples have the right to promote, develop and maintain their
institutional structures and their distinctive customs, spirituality,
traditions, procedures, practices and, in the cases where they exist, juridical
systems or customs, in accordance with international human rights standards.

Article 35

Indigenous peoples have the right to determine the responsibilities of
individuals to their communities.

Article 36

Indigenous peoples, in particular those divided by international borders,
have the right to maintain and develop contacts, relations and cooperation,
including activities for spiritual, cultural, political, economic and social
purposes, with their own members as well as other peoples across borders.
States, in consultation and cooperation with indigenous peoples, shall take
effective measures to facilitate the exercise and ensure the implementation of
this right.

Article 37

Indigenous peoples have the right to the recognition, observance and
enforcement of treaties, agreements and other constructive arrangements
concluded with States or their successors and to have States honour and respect
such treaties, agreements and other constructive arrangements.
Nothing in this Declaration may be interpreted as diminishing or eliminating
the rights of indigenous peoples contained in treaties, agreements and other
constructive arrangements.

Article 38

States in consultation and cooperation with indigenous peoples, shall take
the appropriate measures, including legislative measures, to achieve the ends of
this Declaration.

Article 39

Indigenous peoples have the right to have access to financial and technical
assistance from States and through international cooperation, for the enjoyment
of the rights contained in this Declaration.

Article 40

Indigenous peoples have the right to access to and prompt decision through
just and fair procedures for the resolution of conflicts and disputes with
States or other parties, as well as to effective remedies for all infringements
of their individual and collective rights. Such a decision shall give due
consideration to the customs, traditions, rules and legal systems of the
indigenous peoples concerned and international human rights.

Article 41

The organs and specialized agencies of the United Nations system and other
intergovernmental organizations shall contribute to the full realization of the
provisions of this Declaration through the mobilization, inter alia, of
financial cooperation and technical assistance. Ways and means of ensuring
participation of indigenous peoples on issues affecting them shall be
established.

Article 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.

Article 43

The rights recognized herein constitute the minimum standards for the
survival, dignity and well-being of the indigenous peoples of the world.

Article 44

All the rights and freedoms recognized herein are equally guaranteed to male
and female indigenous individuals.

Article 45

Nothing in this Declaration may be construed as diminishing or extinguishing
the rights indigenous peoples have now or may acquire in the future.

Article 46

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.
In the exercise of the rights enunciated in the present Declaration, human
rights and fundamental freedoms of all shall be respected. The exercise of the
rights set forth in this Declaration shall be subject only to such limitations
as are determined by law and in accordance with international human rights
obligations. Any such limitations shall be non-discriminatory and strictly
necessary solely for the purpose of securing due recognition and respect for the
rights and freedoms of others and for meeting the just and most compelling
requirements of a democratic society.
The provisions set forth in this Declaration shall be interpreted in
accordance with the principles of justice, democracy, respect for human rights,
equality, non-discrimination, good governance and good faith.

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Native Title Report 2009 - Appendix 4