Indigenous Peoples Permanent Sovereignty Over Natural Resources
Lecture by Professor Dr. Erica-Irene A. Daes at the National
Native Title Conference, Adelaide, Thursday, 3 June 2004.
I should like to acknowledge the Garner people, the traditional owners of this land where we meet.
I also pay my respect to all of the elders present.
Further, I would like to recognize Minister Ruddock, the Attorney General of Australia.
Furthermore, I would like to thank Professor Mick Dodson and Mr. Parry Agius for the invitation addressed to me to deliver this lecture within the framework of the National Title Conference. In particular, I express my warmest thanks to the Acting Chairperson of the Conference Mr. Parry Agius for his very kind words about my humble work in the field of the protection of the rights of the world's Indigenous Peoples and my background.
Mr. Chairperson Distinguished Participants,
It is a great honor and a particular pleasure for me to be invited to address the "National Title Conference", which is of historic importance. The topic of my talk is :" Indigenous Peoples Permanent Sovereignty Over Natural Resources."
I would like to begin my talk by examining briefly the History of the Concept of Permanent Sovereignty Over Natural Resources within the UN System.
The United Nations has been the birthplace of this principle and the main forum for its development and implementation. Relevant resolutions were first adopted by The General Assembly in the years 1950's giving initial recognition to this concept as applied to peoples and nations. In 1958, the General Assembly established the Commission on Permanent Sovereignty Over Natural Resources and instructed it to conduct a full survey of the status of permanent sovereignty over natural wealth and resources as a "basic constituent of the right to self-determination." But it was General Assembly resolution 1803 (XVII) in 1962 that gave the principle momentum under international law in the decolonization process. In this important resolution the Assembly declared, inter alia:
"The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned."
The exploration, development and disposition of such resources, as well as the import of the foreign capital required for these purposes, should be in conformity with the rules and conditions which the s freely consider to be necessary or desirable with regard to the authorization, restriction or prohibition of such activities."
In the above-mentioned resolution, the General Assembly further declared:
"Violation of the rights of peoples and nations to sovereignty over their natural wealth and resources is contrary to the spirit and principles of the Charter of the United Nations and hinders the development of international cooperation and the maintenance of peace."
While the principle of permanent sovereignty over natural resources originally arose as merely a political claim by newly independent States and colonized peoples attempting to take control over their resources and with it
their economic and political destinies, in 1966 permanent sovereignty over natural resources became a general principle of international law when it was included in common Article 1 of the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights. Common Article 1 of the Covenants provides in pertinent part:
"1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence."
Article 47 of the Covenant on Civil and Political Rights and Article 25 of the Covenant on Economic, Social and Cultural Rights further state:
"Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources."
This latter provision was inserted into each of the Covenants very late in the drafting process and shortly before their adoption in 1966. The references in paragraph 2 of common Article 1 of the Covenants to international economic co-operation, mutual benefit and international law, can be read as limitations on a State's ability to arbitrarily and without compensation nationalize or confiscate foreign property in its efforts to freely dispose of its natural wealth and resources. It appears, however, that the above-mentioned provisions of Articles 47 and 25 were intended to strike a balance by also ensuring that States did not invoke paragraph 2 to impose or support "imperialist policies and practices tending to control the economy of developing countries and ... impair thereby their political independence."
The United Nations has adopted more than 80 resolutions relating to permanent sovereignty over natural resources, and the principle has been incorporated into a number of multilateral treaties. The debates and discussions around the inclusion of permanent sovereignty over natural resources in these various resolutions and instruments have addressed State concerns regarding the rights of States to nationalize economic activities, the rights of "developing countries" as against "developed countries," the extent to which a people must consider in the exploitation of its resources the scarcity of the resources, their optimal use, and the larger needs and aspirations of the international community as a whole, and the obligations of successor states to honor existing economic agreements and arrangements.
The right of permanent sovereignty over natural resources was recognized, because it was understood early on that without it, the right of self-determination would be meaningless. In many ways, this point was confirmed by a 1955 report of the United Nations Secretary-General. In describing the debates surrounding the drafting of common Article 1 of the two International Covenants on Human Rights, he noted, inter allay that "the right of self-determination certainly included the simple and elementary principle that a nation or people should be master of its own natural wealth or resource."
In recent years, the substance of this principle has been implicitly incorporated into the UN Draft Declaration on the Rights of Indigenous Peoples, and it has become the subject of considerable debate not only at the United Nations system forums and other Intergovernmental Organizations, but also at the International Financial Institutions, the Universities, other Academic Institutions and Non-governmental organizations concerned.
The subject of permanent sovereignty over natural resources is also present in the discussions surrounding the parallel provisions relating to self-determination and lands and territories that appear in the Organization of American States' (OAS) Draft American Declaration on the Rights of Indigenous Peoples.
In addition to the United Nations and Organization of American States' standard setting activities related to Indigenous peoples, there are also ongoing deliberations associated with the development, revision and application of Indigenous peoples policies within the various multilateral agencies within the United Nations itself - particularly, the World Bank and the United Nations Development Programme. Each of these entities has an Indigenous peoples policy. For these reasons, there is a growing need for the United Nations to take the lead in fostering a dialogue about the nature of this right as applied to Indigenous peoples and the impact that such a right might have on the duties and obligations of States.
Let me, Mr. Chairman, to refer now to the General Considerations related to the Concept Indigenous Peoples Permanent Sovereignty. There is a growing and positive trend in international law and practice to extend the concept and principle of self-determination to peoples and groups within existing States. While understood to no longer include a right to secession or independence (except for a few situations or under certain exceptional conditions), nowadays the right to self-determination contains a range of alternatives including the right to participate in the governance of the State as well as the right to various forms of autonomy and self-governance. In order to be meaningful, this modern concept of self-determination must logically and legally carry with it the essential right of permanent sovereignty over natural resources. The considerations that lie behind this observation must now be examined.
To begin, it might be useful to examine why the term "sovereignty" can appropriately be used in reference to Indigenous peoples and their natural resources within independent States. In this connection, concern was expressed about whether two "sovereigns" can exist within one State or share in the same resources. The meaning of the term in relation to the principle of permanent sovereignty over natural resources can be generally stated as legal, governmental control and management authority over natural resources, particularly as an aspect of the exercise of the right of self-determination.
In this context, it is apparent that the term "sovereignty" refers not to the abstract and absolute sense of the term, but rather to governmental control and authority over the resources in the exercise of self-determination. Thus, it does not mean, the supreme authority of an independent State. The use of the term in relation to Indigenous peoples does not place them on the same level as States or place them in conflict with State sovereignty.
In the sixteenth century, the term " sovereignty" referred to the supreme power within a State without any restriction whatever. However, by the time of the influential French jurist Emmerich de Vattel's The Law of Nations in the early nineteenth century, the term no longer had this absolute sense, and it was recognized in international law that a "sovereign" could be under the protection of another, greater sovereign without losing its "sovereignty."
In modern times it is commonplace to observe that no State enjoys unfettered sovereignty, and all States are limited in their sovereignty by treaties and by customary international law. In fact, it is common practice for States to enter into international agreements that not only reflect certain limits to their sovereignty, but also acknowledge certain benefits that can be derived when sovereigns cooperate in their management and use of natural resources. Thus, in legal principle there is no objection to using the term sovereignty in reference to Indigenous peoples acting in their governmental capacity. In fact, Indigenous peoples have long been recognized as being sovereign by many countries in various parts of the world.
In the United States, Indian tribes have been recognized as sovereign political entities since the formative years of the Federal Government. These principles were first completely expressed in the case Worcester v. Georgia. That case arose when the State of Georgia imprisoned several missionaries who were living on Cherokee Nation territory in violation of a state law requiring non-Indians to obtain a license from the governor.
Justice John Marshall set forth what is still the law today in the United States when he found that Indian nations have always been recognized as "distinct, independent, political communities" and are, as such, qualified to exercise powers of self- government, not by virtue of any delegation of powers from the Federal Government, but by reason of their original tribal sovereignty.
In the recent Case of the Mayagna (Sumo) Community of Awas Tingni v. Nicaragua, the Inter-American Court of Human Rights, in interpreting the right to property as found in Article 21 of the American Convention on Human Rights, made clear in its judgment that Indigenous peoples' rights to their lands include rights to the resources there (para. 153) and that these rights of ownership are held by the community in their collective capacity and according to their own customary law, values, customs and mores (paras. 148, 151, 153). Though the Court did not use the term "sovereignty", there is no question that the decision found that
international law protects the governmental or collective right of the community to the land and resources.
The law of Nicaragua has long provided for autonomy in the Indian regions of the country. The Constitution of Nicaragua has also clearly recognized Indigenous forms of social organization as well as the right of Indigenous peoples to manage their local affairs, maintain their communal forms of ownership, and their right to the use and enjoyment of their lands. Recently, the Government of Nicaragua passed legislation regarding the demarcation and titling of Indigenous lands. This new law further recognizes the governance authority of local Indian communities over their lands, territories and resources along the Atlantic Coast. These are specific examples of one form of "sovereignty" as that term is used in modern legal discourse.
In New Zealand, the concept of sovereignty, as applied to the Indigenous Maori peoples is a part of the accepted legal framework of the State. The Treaty of Waitangi between the British Crown and Maori is regarded as the fundamental instrument of New Zealand, and this treaty explicitly and implicitly testifies to the sovereignty of Maori. The concept of Maori sovereignty is known by a Maori term, tino rangatiratanga". Though the term and its application are often debated there, the meaning can be roughly given as "chiefly authority". This is another example of a form of sovereignty on the part of Indigenous peoples that is recognized and operative within a State.
In Canada, and in many other countries, Indigenous self-government is provided for in the case of Canada by the Indian Act, including various degrees of control over natural resources. Such regimes of control over resources by Indigenous governance institutions provide many more examples of various forms of Indigenous sovereignty over natural resources within sovereign States.
The International Labour Organization Indigenous and Tribal Peoples Convention No. 169/1989, now ratified by 17 countries, contains important provisions for control over natural resources by Indigenous peoples in their collective capacity as peoples. In particular, article 15 provides for the rights of "peoples" to their natural resources. Paragraph 1 reads as follows:
"1. The rights of the peoples concerned to the natural resources pertaining to their lands shall be specifically safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources."
This limited guarantee of control and management authority on the part of Indigenous and tribal peoples within States in my opinion, is another form of sovereignty as that term is now understood. This authority is further recognized in article 7, which guarantees, among other things:
"1. The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development."
Articles 2, 4, 5 and 6 of the aforementioned Convention, also refer to the "institutions" and "representative institutions" of Indigenous and tribal peoples. This further reinforces the understanding that Indigenous and tribal peoples within States ratifying ILO. Convention No.169 enjoy at least limited forms of sovereignty or management authority.
Thus, I would like to state that the term "sovereignty" may be used in reference to Indigenous peoples without in the least diminishing or contradicting the "sovereignty" of the State. The well-established use of the term in many areas of the world, rules out any such implication.
Accordingly, I would suggest that as laws, mechanisms and measures are developed to address this issue, States and Indigenous peoples should concern themselves less with what the right might be named, and more with whether Indigenous peoples' ownership of and governing authority over all their natural resources are adequately recognized and protected.
With an understanding of how the concept of sovereignty is applied to Indigenous peoples, it becomes further apparent that, when examining their right of self- determination, the principle of permanent sovereignty over natural resources should also apply to Indigenous peoples. There are a number of reasons for this. They include the following:
(a) Indigenous peoples are colonized peoples in the economic, political and historical sense;
(b) Indigenous peoples suffer from unfair and unequal economic arrangements typically suffered by other colonized peoples;
(c) The principle of permanent sovereignty over natural resources is necessary to level the economic and political playing field and to provide protection against unfair and oppressive arrangements;
(d) Indigenous peoples have a right to development and actively to participate in the realization of this right; sovereignty over their natural resources is an essential prerequisite for this; and
(e) The natural resources original belonged to the Indigenous peoples concerned and were not, in most situations, freely and fairly given up.
The recently published independent study for the World Bank, the Extractive Industries Review gave detailed attention to the matter of Indigenous peoples' rights to natural resources and reached a number of important conclusions relevant to this subject. The crucial importance of natural resources to Indigenous peoples was one such conclusion.
Increased extractive activities on Indigenous peoples' traditional lands, territories, and resources without guarantees for their rights often create public disorder, health concerns, political and social instability, and legal uncertainty.
Further reasons for applying a principle such as that of permanent sovereignty over natural resources were also identified, and attention was called to the importance of recognizing the authority of Indigenous peoples to grant or withhold their consent to resettlement:
Involuntary resettlement of Indigenous peoples should be strictly prohibited. Resettlement should only be allowed if the Indigenous community has given free, prior and informed consent, there are guarantees of a right to return once the reason for resettlement ceases to exist, and subsequent to agreement on resettlement benefits. Moreover, the World Bank Group should not support extractive industry projects that affect Indigenous peoples without prior recognition of and effective guarantees for Indigenous peoples' rights to own, control, and manage their lands, territories, and resources.
The inadequacy and unfairness in certain present legal regimes regarding bio-prospecting, patents, and other intellectual property laws have deprived Indigenous peoples of valuable economic resources and have resulted in damage to Indigenous cultures as well.
In certain countries, such as Canada and the United States, some Indigenous resources are held and managed by the State under a system of trusteeship. Submissions by Indigenous groups to the Working Group on Indigenous Populations, have documented charges of mismanagement and abuses of these systems of trusteeship. Such systems of trusteeship are reminiscent of abuses that were typical of overseas colonies in the past century.
The recognition and accommodation of Indigenous peoples' rights to control and manage their natural resources is not a new idea. Many countries already recognize, to varying extents, the rights of Indigenous peoples to own, use, control and manage their natural resources.
With regard to resource development on lands acquired under the Native Title Act, the Aboriginal and Torres Strait Islander Social Justice Commissioner Dr. W Jonas to whom I paid deep tribute, in his excellent, comprehensive and very constructive on Native Title Report 2003, p.13, observed that native title parties are given only "a right to be consulted on ways to minimize the impact of the development on native title rights and interests." He criticizes the lack of Indigenous participation in benefits from development, the lack of funds to enable native title holders to function effectively, and the failure to vest ownership and management of the natural resources in the traditional owners of the land.
Also, the Sami people, Indigenous to coastal and northern Norway, Sweden, Finland, and Russia, do not have any legally settled rights to lands or resources in Norway. The Sami have occupied and used lands in Norway since time immemorial, and Norway's constitution requires that the State provide the conditions necessary for the Sami to protect Sami language, culture and society. Nevertheless, the government denies Sami claims to lands and resources, and the issues remains unsettled. Pending legislation that would deal with land, resources and governance in the traditional Sami area of northern Norway, is strongly opposed by the Sami Parliament.
As I have already stressed , in its simplest terms Indigenous peoples, permanent sovereignty over natural resources can be understood to mean the right of a nation or people to exercise ownership, control, and management authority over its natural resources (surface and sub-surface), in particular as an aspect of the exercise of the right of self-determination. My proposition, and indeed my basic conclusion that the principle of permanent sovereignty over natural resources must now be applied to Indigenous peoples, is one that has emerged from international law, particularly the developments in international human rights law concerning Indigenous peoples.
The International Labour Organization as it was already mentioned, adopted its 169/1989 Convention on Indigenous and Tribal Peoples which, inter alias affirms Indigenous peoples' "rights of ownership and possession ... over the lands which they traditionally occupy" (Art. 14.1); Indigenous rights to the "natural resources pertaining to their lands"; and their right to "participate in the use, management and conservation of these resources" (Art. 15.1). The Convention further guarantees that Indigenous peoples "have the right to decide their own priorities for the process of development" over the "lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development." (Art. 7(1)). While the Convention recognizes the rights of States where they retain ownership of mineral or sub-surface resources within Indigenous lands, this State right is not expressed in absolute terms. Rather, its exercise is preconditioned on consultation with Indigenous peoples and an assessment of the Indigenous "interests [that] would be prejudiced." (Art. 15(2)).
While I.L.O. Convention No. 169 is the international legal instrument, that specifically deals with the rights of Indigenous peoples, other human rights instruments adopted at both the United Nations and at the regional level have since been interpreted to address the rights of Indigenous peoples to their lands, territories, and resources. Within the United Nations, for example, Article 27 of the International Covenant on Civil and Political Rights (ICCPR) protects among other things, the rights of ethnic, religious or linguistic minorities to enjoy their own culture. The United Nations Human Rights Committee, in the context of monitoring State parties' compliance with the Covenant, has affirmed in its 1994 General Comment No 23 , that Article 27 - as applied to Indigenous peoples - protects the use of Indigenous lands, territories, and resources, as they are inextricably connected to their culture and way of life, particularly in the carrying out of traditional activities (including subsistence activities) and those related to the practice of their religion.
The Human Rights Committee has also made several observations that associate the rights of Indigenous peoples with the right of all peoples under Article 1(2) of the two Covenants to freely dispose of their natural wealth and resources. For instance, in its 1999 Concluding observations regarding Canada, the Committee acknowledged the conclusion of the Royal Commission on Aboriginal Peoples (RCAP) that "without a greater share of land and resources, institutions of aboriginal self-government will fail." The Committee emphasized that under Article 1, paragraph 2 "the right to self-determination requires, inter alia, that all peoples must be able to freely dispose of their natural wealth and resources and that they may not be deprived of their own means of subsistence." The Committee recommended that "decisive and urgent action be taken [by Canada] towards the full implementation of the Royal Commission on Aboriginal Peoples recommendations on land and resource allocation" and that "the [State] practice of extinguishing inherent aboriginal rights be abandoned as incompatible with Article 1 of the Covenant."
These important observations of the Human Rights Committee regarding Canada, as well as the Committee's related observations on Norway and Australia, provide some support for the argument that the term "peoples" in paragraph 2 of Common Article 1 of the Covenants affirms a right not just of the whole people of a State, but also for distinct groups or peoples within the larger population - including Indigenous peoples. In particular , the Human Rights Committee in its concluding observations, concerning Australia, contained in paragraphs 498-528 of document A/55/40/24 July 2000, on "Principal subjects of concern and recommendations", states inter alia,:" noting with concern that Native Title Amendments of 1998 in some respects limit the rights of Indigenous peoples and communities, in particular in the field of effective participation in all matters affecting land ownership and use, and affects their interests in native title lands, particularly pastoral lands" and recommending that the State party .... take the necessary steps in order to secure for the Indigenous inhabitants a stronger role in decision -making over their traditional lands and natural resources.
Further support for giving the term "peoples" the wider meaning can be found in a recent decision of the African Commission on Human and Peoples' Rights. In a case involving the Ogoni people of Nigeria, the Commission found that the term "peoples" referred to in Article 21 of the African [Banjul] Charter on Human and Peoples' Rights (affirming a right of "[a]ll peoples" to "freely dispose of their wealth and natural resources") includes a distinct Indigenous people within a State and does not refer only to the whole people of the State. This decision and the concluding observations of the Human Rights Committee suggest that paragraph 2 of Common Article I of the two International Covenants on Human Rights, also applies to distinct peoples within States - including Indigenous peoples.
Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination provides, among other things, that "everyone, without distinction as to race, colour, or national or ethnic origin" has the right to "equality before the law" as well as the "right to own property alone as well as in association with others." This right to property is identical to the language appearing in the Universal Declaration of Human Rights (Art. 17(1)). In 1997, the United Nations Committee on the Elimination of Racial Discrimination - charged with monitoring State parties' compliance with the Convention, issued its General Recommendation XXlll (51) in which it set out its interpretation of the Convention in relation to Indigenous peoples. In its recommendation, the Committee on the Elimination of Racial Discrimination called upon States "to recognize and protect the rights of Indigenous peoples to own, develop, control and use their communal lands, territories and resources" and to take steps to return "their lands and territories traditionally owned or otherwise inhabited or used" when they have been taken "without their free and informed consent." The same Committee has also issued a number of country-specific recommendations that have further elaborated on State obligations under the Convention with respect to Indigenous peoples and their lands and territories.
Accordingly, existing international instruments have either expressly affirmed certain Indigenous rights of ownership and control over their lands, territories and resources or through subsequent interpretation, have been found to do so.
Furthermore, there are new standards and norms that are being developed within the United Nations and the Organization of American States that include detailed provisions recognizing the rights of Indigenous peoples to own, use and control the lands, territories and resources that they traditionally used or occupied.
These developing instruments are the United Nations Draft Declaration on the Rights of Indigenous Peoples and the Draft American Declaration on the Rights of Indigenous Peoples. In many ways, both drafts represent some of the many positive developments in existing norms, standards and State practice.
With respect to reservations of State related to ownership, two observations may be helpful. First, the concept of permanent sovereignty over natural resources has always included resources of the subsoil. Thus, extension of this right to Indigenous peoples - if it is to meaningfully assist in their economic and political self- determination - must in some way address all natural resources - including those of the sub-surface. The international and domestic case law as well as findings of international monitoring bodies and State practice have already begun to indicate that no distinction should be made with respect to Indigenous peoples' rights to their surface and sub-surface resources. Secondly, to the extent that States continue to assert ownership of certain natural resources within Indigenous lands and territories, this right must be exercised consistently with the human rights of Indigenous peoples. This also applies to other provisions of domestic law, such as laws regarding the power of eminent domain, and the assertion by the State of its expropriation powers in the interest of the public. It is a well-recognized principle of international law, that States may not invoke their domestic laws to avoid their international obligations.
In connection with the regional and domestic case law , I should like to mention in particular :a) The Inter-American Court of Human Rights' decision in the Case of the Mayagna (Sumo) Community of Awas Tingni v. Nicaragua, which marks the first instance in which an international human rights court with binding authority, has directly addressed the rights of Indigenous peoples to their lands, territories and resources and b) the case of the Maya Indigenous Communities v. Belize, which involved a challenge, among other things, to oil and logging concessions granted by the government within Maya ancestral lands.
While international instruments, tribunals, and commissions have been grappling with and advancing our understanding of the scope of Indigenous peoples' rights to their lands, territories, and resources, the various domestic courts of the United Nations Member States have been making advances as well. In fact, some of the pronouncements of these courts have tracked to varying degrees the Indigenous rights being affirmed and developed at the international level. While the limited time provides for this talk, does not allow a full discussion of this domestic jurisprudence, I should like to highlight three domestic cases in particular: Mabo v. Queensland (No. 2) of Australia, Delgamuukw v. British Columbia of Canada, and the recent Alexkor Ltd. v. Richtersveld Community and others pronounced by the Constitutional Court of South Africa.. Each of these cases, while containing its own limitations, has advanced our understanding of Indigenous peoples' rights to its lands, territories and resources.
While Mabo's decision, reference to Indigenous laws and customs further contributes to our understanding of the law surrounding the right of Indigenous peoples to use, own and control their resources, the 1997 decision of the Delgamuukw v. British Columbia helps to define what resources might be included in this right. Although the Canadian Supreme Court articulated a number of limitations to the aboriginal titles in Delgamuukw, the Court also made it clear that "aboriginal title encompasses mineral rights". This case, therefore, lends further support to the inclusion of sub-surface resources in our understanding about the scope of natural resources over which Indigenous peoples may have sovereignty.
The decision of the Constitutional Court of South Africa in Alexkor Limited and the Government of South Africa v. The Richtersveld Community and Others of 14 October 2003, also addressed the issue of sub-surface rights. One of the legal questions before the court was whether the Indigenous people concerned owned the sub-surface resources pertaining to their lands prior to 1913, the date of certain legal measures depriving them of certain rights. The court found that the Indigenous Richtersveld Community had a right of communal ownership of the land under Indigenous law.
Mr. Chairperson, Distinguished Participants,
Permit now, to refer briefly to certain principal conclusions related to the subject of my talk.
1. International law has developed substantially concerning the legal obligations of States to recognize, demarcate, and title Indigenous peoples' rights to lands and associated resources. Legal standards now exist in international law that direct or guide States in determining what lands, territories, and resources belong to Indigenous peoples.
2. As a general matter, absent any prior, fair, and lawful disposition of the resources, Indigenous peoples are the owners of the natural resources on or under their lands and territories. Though Indigenous peoples' permanent sovereignty over natural resources has not been explicitly recognized in international legal instruments, this right may now be said to exist. It is, my opinion that the right exists in international law by reason of the positive recognition of a broad range of human rights held by Indigenous peoples, most notably the right to own property, the right of ownership of the lands they historically or traditionally use and occupy, the rights to self-determination and autonomy, the right to development, the right to be free from discrimination, and a host of other human rights.
3. The right of Indigenous peoples to permanent sovereignty over natural resources may be articulated as follows: It is a collective right by virtue of which States are obligated to respect, protect, and promote the governmental and property interests of Indigenous peoples (as collectivities) in their natural resources.
4. The right of permanent sovereignty over natural resources is critical to the future well-being, the alleviation of poverty, the physical and cultural survival, and the social and economic development of Indigenous peoples.
5. Indigenous peoples, if deprived of the natural resources pertaining to their lands and territories, would be deprived of meaningful economic and political self-determination, self- development, and, in many situations, would be effectively deprived of their cultures and the enjoyment of other human rights by reason of extreme poverty and lack of access to their means of subsistence.
6. Laws and legal systems that arbitrarily declare that resources which once belonged to Indigenous peoples are now the property of the State are discriminatory against the Indigenous peoples, whose ownership of the resources predates the State, and are thus contrary to international law.
7. State laws and policies that arbitrarily deny or limit Indigenous peoples' interests in the natural resources pertaining to their lands appear to be vestiges of colonialism that ought to be abandoned.
8. States' powers to take resources for public purposes (with compensation) must be exercised, if at all, in a manner that fully respects and protects all the human rights of Indigenous peoples. In the generality of situations, this would appear to mean that States may not take Indigenous resources, even with fair compensation, because to do so could destroy the future existence of the Indigenous culture and society and possibly deprive it of its means of subsistence.
9. Laws and policies affecting natural resources pertaining to Indigenous lands and territories are varied and complex, reflecting the various circumstances and situations in each State and the Indigenous peoples living within it.
10. New mechanisms and measures are needed at the international level, at least on an interim basis, to assist States in their efforts and to encourage, monitor, and examine their progress in implementing Indigenous peoples' permanent sovereignty over natural resources.
11. Conditions of grossly unequal bargaining power can result in unjust transactions between Indigenous peoples and others and may result in exploitation of resources in a manner very harmful to the Indigenous people concerned. Accordingly, mechanisms and measures at the international level are particularly needed to assure that oppressive, fraudulent, and other unjust arrangements are avoided, consistent with the freedom of Indigenous peoples to manage and develop their own resources. And
12. It is an imperative need for the adoption of further legal, administrative and other measures that can effectively protect against oppressive and unjust transactions concerning Indigenous peoples' natural resources, without diminishing Indigenous peoples' rights to use and govern their lands, territories, and resources.
Thank you very much for your kind attention.
Erica-Irene A. Daes