Indigenous People and Human RIghts Flashcards
Ogoni Case (2001)
Nigerian european oil company - oil production in the ogoni territory - prior environmental and social impact not conducted - ogoni refused to evacuate - several killed - took case to afCHPR
Result of Ogoni Case
AfCHPR stated violation of HRs laid in African Charter on Humans and Peoples Rights
- right to health
- collective right to a generally satisfactory environment
- the right to sovereignty over natural resources
- right to property
- protection of family
Why did AfCHPR not rule on the corporate’s responsibility?
“technical issues” in cases where corporations are involved
under HR regime and intl law - you only deal with states
Issue of imposing HR on non-state actors
some actors may not have a full legal personality but can have some level of subjectivity under intl HR law
- Governmental Orgs : for ex- UN, EU - have full legal capacities and intl obligations - UN Peacekeeping Forces
- Armed Groups: esp those who hold territory - some level of subjectivity
- MNCs: some level of subjectivity
Corporations DO commit HR violations - can repress, suppress certain individuals/groups
However, don’t have strong mechanisms in intl law to deal with them
Civil and Political Rights
- Self-Determination (ICCPR) - sometimes excluded bec of territorial integrity
- Right to Political Participation and Representation (UNDRIP)
- Right to Equality and Non-Discrimination (ICCPR and UNDRIP)
- Right to Land and Resources (UNDRIP)
- Right to Maintain Legal and Judicial Systems (UNDRIP)
- Right to Culture, Religion, and Language (UNDRIP)
a. One of the most controversial
i. Very expensive for states to systematically include means of native language education
b. Becomes more controversial when they demand secession
Therefore, some states refrain from recognizing this right due to political reasons - Right to Protection from Forced Assimilation and Violence (Genocide Convention)
Plurinational Identities
Plurinational = Idea of multiple nations, within one nation (state)
ex- Bolivia, Nicaragua, Ecuador
Social, Cultural, and Economic Rights (Land Rights)
Prior free informed consent
With this, can use indigenous resources for national purposes
Mayagna (Sumo) Awas Tingini Community vs Nicaragua
an indigenous group in nicaragua filed a case against the nicaraguan govt. for failing to recognize their traditional land rights
govt had granted a logging concession on their ancenstral land to a foreign company, without their consultation - violating the HRs
takeaway: in indeignous cultures - land is more of a collective property - spiritual and cultural ties to the land
Suramaka People v Suriname
needs to be protected under article 21 of the convention: connectedness between the territory and natural resources necessary for physical and cultural survival
Condition for the exploitation of natural resources?
- effective participation of the indigenous community in the decision-making process, in conformity with their customs and traditions.
- Reasonable benefit for the indigenous community from the economic development in the territory.
- Prior environmental and social impact assessment carried out by independent and capable entities.
Inter-American Approach to Land Rights
- Indigenous land tenure valid without a formal title
- displaced indigenous communities retain their land rights
- economic activities on indigenous lands require consultation and consent
- states must provide equal compensation if land restitution not possible
What is the significance of the case Delgamuukw v. British Columbia (1997)?
The Supreme Court ruled that Indigenous title must be proven through historical evidence, placing the burden of proof on Indigenous claimants.
What did the Supreme Court establish in Tsilhqdin Nation v. British Columbia (2014)?
The Court recognized Indigenous title over traditionally occupied lands and affirmed Indigenous rights to use lands for both traditional and economic activities.
According to Canadian law, what can governments do regarding Indigenous objections?
Governments can override Indigenous objections in certain cases.
What inconsistency exists between Canadian law and IAHRS standards?
Canadian law allows governments to override Indigenous objections, which is inconsistent with IAHRS standards that require consent for major projects.
Canadian Engagement w the Inter-American Human Rights System (IAHRS)
-supports IAHRS financially and diplomatically
-hasn’t ratified American Convention on Human Rights (ACHR), similar to US - despite supporting the system
Multiculturalism
Canada adopted multiculturalism as official policy - legislated it thru the Multiculturalism Act- and embedded in Constitution
-offers a political and legal framework for accommodating cultural diversity and Indigenous rights
- influenced several Latin American constitutions
Free, Prior, and Informed Consent (FPIC)
Canada lags in fully adopting binding standards (e.g., UNDRIP was only endorsed in full in 2016
- has not ratified ILO 169
Latin America leads in FPIC legal standards
FPIC is central to Indigenous autonomy, and Canadian law falls short by limiting its application to lands with proven title.
Indigenous Territorial Rights in the IAHRS
IAHRS decisions affirm that:
- Customary possession = title.
-Formal titling is not required for exercising land rights.
○ Third-party acquisition in good faith does not override Indigenous claims.
Notable cases: Awas Tingni (Nicaragua), Yakye Axa (Paraguay), Saramaka (Suriname).
Canadian Supreme Court Doctrine vs. IAHRS
Tsilhqot’in Nation (2014) advanced Indigenous title but made consent mandatory only where title is proven, unlike IAHRS which mandates consent in broader contexts
Canadian courts allow for state override of Indigenous objection if justified - conflicting with IAHRS and UNDRIP principles.
R. v. Gladue (1999)
established unique sentencing principles for Indigenous offenders
UNDRIP (United Nations Declaration on the Rights of Indigenous People)
minimum standards for the survival, dignity, and well-being of Indigenous peoples
states and the UN are responsible for promoting and ensuring the realizatdion of these rights
key themes:
- Self-Determination and Autonomy
-Equality and Non-Discrimination
-Land, Territory, and Resources
-Cultural and Spiritual Rights
-Education, Media, and Knowledge Systems
-Participation and Consent
-Social and Economic Rights
-Justice and Redress
