One of the biggest shortcomings of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is that it does not actually define Indigenous Peoples. Not surprisingly, this makes it complicated—if not impossible—to assess their claims to land, resources and local economic livelihood and sustainability.
Throughout history, millions upon millions of acres of land have been lost by Indigenous Peoples the world over. Sometimes this has been the result of treaties. But mostly it has been accomplished by conquest or nonrecognition of indigenous rights by nation-states.
Yet instead of providing protections for indigenous lands, UNDRIP puts the decision-making power about their occupancy and control in the hands of national governments. The document simply suggests that these governments should address the issues of land and resource rights, and encourages Indigenous Peoples to bring their grievances before legal and legislative institutions.
This is a fool’s errand. Indigenous concepts of land use, stewardship, and collective ownership are significantly different from “mainstream” market values. And most of the world’s nations do not recognize indigenous titles to land. At best, only Canadian, Australian and a few other national courts have done so, based on oral tradition. Yet UNDRIP expects Indigenous Peoples to make identity claims and land claims before government institutions and abide by their decisions.
Admittedly, providing a universal definition for Indigenous Peoples for the entire world is a daunting task. Early attempts at doing so generally focused on the term indigenous populations. However, that somewhat limited usage denied community and political structure as well as history and culture.
More recent definitions, by contrast, have focused on the concept of self-definition. That construct combines “subjective elements of self-identification and its complement, community acceptance,” wrote Augusto Willemsen-Diaz, a now retired official of the Human Rights Centre of the United Nations in Geneva, in Making the Declaration Work, an analysis of UNDRIP in practice.
Reliance on self- and community definition, however, tends to reduce indigenous people to minority or ethnic group status. It also denies their history, territorial claims, and social and cultural differences. It was this complexity of providing a definition that ultimately led to the removal of a definitional article within the declaration.
But complexity wasn’t the only reason that UNDRIP ended up not defining Indigenous Peoples. We now know that some parties actually wanted a definition, but for their own selfish ends. In particular, a number of African and Asian countries were at fault.
“African and Asian governments held the view that a definition of the term Indigenous Peoples should be included in the text in order to identify the beneficiaries,” wrote John Henriksen, lawyer for the Sami Nation, in Making the Declaration Work. “It was clear that some of these states were more interested in obtaining a definition that would exclude Indigenous Peoples in their own countries from becoming beneficiaries of the declaration. It was frequently stated by African and Asian states that they did not have any Indigenous Peoples in their countries and that everyone there was indigenous.”
It was a cynical and dishonest ploy, perpetrated at the expense of some of those countries’ most vulnerable citizens. As Adelfo Regino Montes, a Mixe/Ayuujk lawyer, and Gustavo Torres Cisneros, member of the Mexican diplomatic mission to the U.N. in Geneva, wrote in Making the Declaration Work, “Within these countries there are social groups, relatively marginalized, distinct from the majority, who have also traditionally been the victims of discrimination and marginalization, often the victims of violence, dispossession, genocide even and a lack of recognition of, and respect for, their ancestral lands.”
But whatever the reason, the outcome was the same. By avoiding a clear definition of Indigenous Peoples, the framers of UNDRIP managed to avoid recognizing contemporary and future collective claims to territories and resources by indigenous nations.
And that is a tragically missed opportunity. There are already too few checks and balances on national governments when they make policy for or decide to recognize Indigenous Peoples. Now, despite UNDRIP, Indigenous Peoples around the world are bound to suffer large territorial losses during the 21st century—just as they did in the Americas for half of the past millennium.