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Fora for articulating and vindicating the land and

resource rights of indigenous peoples

At the same time as states and indigenous peoples have been elaborating declarations

of rights that pertain specifically to indigenous peoples, some indigenous peoples

have also been making efforts to take advantage of existing and general human rights

instruments. We have seen some examples of this in the text already, as indigenous

peoples seek to use the Human Rights Committee and the ‘minorities’ provision of

the ICCPR.

However, this trend has perhaps been most noticeable in the context of

the OAS, where indigenous peoples have vindicated their rights before both the Inter

American Commission on Human Rights and within the Inter American Court.

Resort to these fora has been triggered in each case by conflicts between indigenous

peoples and state-authorized resource activities (including oil and gas activities) in

traditional territories. These cases include the Awas Tingni Case before the Court and

the Maya Case before the Commission. The former is the more authoritative. While

neither of these decisions directly implicates any of the four Arctic states that are the

subject of this volume, the decisions do show how general human rights instruments

should be relevant considerations when states propose to licence resource develop-

ment activities within the traditional territories of indigenous peoples.

There are two main human rights instruments within the OAS system: the American

Declaration on the Rights and Duties of Man, and the American Convention on

Human Rights. The principal distinction between these two instruments for present

purposes is that all member states of the OAS are subject to the Declaration by virtue

of membership but the Convention binds only those states that have ratified the

Convention. Neither the USA nor Canada has ratified the Convention.

In Awas Tingni, the community argued that Nicaragua was in breach of two

obligations under the Convention, the Article 25 right to an effective remedy and

the Article 21 right to property. The trigger for the alleged breach was the

decision of the Nicaraguan government to enter into a timber concession within

the traditional territory of the indigenous people.

As to the right to an effective remedy, the plaintiffs in Awas Tingni noted

that Nicaragua’s constitution and domestic legislation was supposed to protect the

rights of indigenous peoples, but over many years, and after several rounds of

litigation, no indigenous people in Nicaragua had ever been able to obtain secure

title to their traditional territories. That, in the opinion of the Court, was a breach

of the state’s obligations and by way of remedy (at para. 138):

the State must adopt in its domestic law the necessary legislative, adminis-

trative, or other measures to create an effective mechanism for delimitation

and titling of the property of the members of the Awas Tingni Mayagna

Community, in accordance with the customary law, values, customs and

mores of that Community.

As to the right to property, the Court began by observing that the right to property

protected by Article 21 of the Convention protected not only an individual’s right to

306 K. F. Hansen and N. Bankes

property but also communal conceptions of property common to indigenous soci-

eties. This ought particularly to be the case given the importance that indigenous

peoples attach to their relationship to land and traditional territory (at para. 149):

some specifications are required on the concept of property in indigenous

communities. Among indigenous peoples there is a communitarian tradition

regarding a communal form of collective property of the land, in the sense

that ownership of the land is not centred on an individual but rather on the

group and its community. Indigenous groups, by the fact of their very exis-

tence, have the right to live freely in their own territory; the close ties of

indigenous people with the land must be recognized and understood as the

fundamental basis of their cultures, their spiritual life, their integrity, and

their economic survival. For indigenous communities, relations to the land

are not merely a matter of possession and production but a material and spir-

itual element which they must fully enjoy, even to preserve their cultural

legacy and transmit it to future generations.

As we have just noted, Nicaragua’s legal system purported to offer both consti-

tutional and statutory protection to the property rights of indigenous peoples. The

difficulty was that the state had failed to implement this protection in a practical

and effective way thereby creating (at para. 153) ‘a climate of constant uncer-

tainty among the members of the Awas Tingni Community, insofar as they do

not know for certain how far their communal property extends geographically

and, therefore, they do not know until where they can freely use and enjoy their

respective property’. That, in the opinion of the Court, cried out for a remedy.

Accordingly, the Court ruled (at para. 153) that:

the members of the Awas Tingni Community have the right that the State

1. carry out the delimitation, demarcation, and titling of the territory

belonging to the Community; and

2. abstain from carrying out, until that delimitation, demarcation, and titling

have been done, actions that might lead the agents of the State itself, or

third parties acting with its acquiescence or its tolerance, to affect the

existence, value, use or enjoyment of the property located in the

geographical area where the members of the Community live and carry

out their activities.

. . . . the Court believes that, in light of Article 21 of the Convention, the State

has violated the right of the members of the Mayagna Awas Tingni

Community to the use and enjoyment of their property, and that it has granted

concessions to third parties to utilize the property and resources located in an

area which could correspond, fully or in part, to the lands which must be

delimited, demarcated and titled.

Human rights and indigenous peoples in the Arctic 307

The Maya

decision of the Commission extends the analysis to a different sector

(the oil and gas sector) and to different protected rights (the right to equality before

the law), and extends the analysis to the Declaration as well as the Convention.

But the gravamen of the Maya claim was the same as that that of the Awas Tigni,

namely that the state had alienated resource rights in Maya traditional territory

without first demarcating and recognizing the rights of the indigenous inhabitants.

As part of its equality analysis, the Commission made two significant points. The

first was that there was a disparity in the protection that the state of

Belize offered to different forms of property. State-granted rights were well protected

by a state title system. By contrast, the state afforded the customary rights of the

Maya no recognition or protection. That, in the opinion of the Commission,

amounted to a breach of the Article II right (under the Declaration) to equality before

the law. Second, the Commission emphasized that, in the circumstances (and given

a prevailing environment in which indigenous land rights had not been protected),

formal equality of treatment might not suffice. Hence the state of Belize might be

required to take special measures to protect those indigenous property rights.

In conclusion, a growing body of case law in the inter-American system shows

how basic human rights protections may be used by indigenous communities to

require that states take steps to protect their traditional lands and furthermore

require that states take these measures before they grant resource interests to

other parties within those traditional territories. This body of law is directly appli-

cable to both Canada and the USA but may also be persuasive in the context of

other international human rights instruments.

Discussion and conclusions

In this concluding section, we draw attention to several themes that emerge from

the above account. The first theme deals with the competing claims of the state

and indigenous peoples to land and resources. The second theme seeks to draw

out the importance of legal and political recognition of the colonial context

of relationships between settler societies and indigenous peoples, and the third

theme explores some of the implications of the material covered in this chapter

for the corporate social responsibility policies of oil and gas corporations

operating within the traditional territories of indigenous peoples.

Uncertain laws and unresolved land claims: prior informed consent

or prior informed consultation

Indigenous peoples regard oil and gas development as one of the greatest threats

to their survival as peoples. Indigenous peoples depend on their lands, territories

and natural resources for their livelihoods and their cultural survival. As demand

for oil and gas increases worldwide, the pressure on indigenous peoples’ lands

intensifies. According to representatives of indigenous peoples, they have

‘legitimate reasons for being deeply concerned about planned oil and gas explo-

rations in their territories as developers’ interests normally prevail wherever and

308 K. F. Hansen and N. Bankes

whenever indigenous people’s interests and rights clash with development proj-

ects’ (Henriksen, 2005: 655).

This chapter has demonstrated that existing international human rights laws

and conventions recognize the right of indigenous peoples to the ownership and

control of their lands, territories and natural resources. Yet states, relying on the

statist rhetoric of permanent sovereignty,

also claim rights over those natural

resources including the right to control sub-surface resources to develop them in

their national state interest. But state sovereignty over natural resources cannot be

absolute. It must be subject to other principles and rules of international law,

including human rights norms (Caruso, Colchester, MacKay et al., 2003: 21,

Salim, 2004: 59). These competing claims frequently lead to conflict, serving to

draw attention to a central issue which lies at the heart of many international

debates: is the relevant rule that of prior informed consent before the state author-

izes activities within traditional territories of indigenous peoples, or does the

relevant norm have a softer content, such as prior informed consultation?

Central in this debate is the concept of time. Indigenous peoples have ‘different

orientations towards time and space, different positioning within time and space,

and different systems of making space and time “real”’ (Tuhiwai Smith, [1999]

2005: 55). While politicians think in terms of the next elections (3–6 years),

and oil and gas companies plan for the coming 10–20 years, indigenous peoples

use a timeframe of many generations. Indigenous peoples have cultural survival

as their prime goal, while oil and gas companies aim to maximize shareholder

returns. Hence, for indigenous peoples, a fair consultation procedure requires

a timeframe that is different from that typically adopted by modern states and

the oil and gas industry. It takes time to inform people about specific issues

and it takes time to gather different views. And if governments and industry

fail to take that time, the process is merely a formality without relevance to

indigenous people.

Recognizing the colonial context

Indigenous peoples have suffered under different forms of colonial settlement

and conquest for centuries. This is as true in the Arctic as elsewhere,

where the colonial powers include: Canada (as the successor to England and

France) v. First Nations and Inuit; the USA in Alaska (and as the successor to

Russia) v. the Inupiat, Aleut and other peoples; Norway, Sweden, Finland and

Russia, v. the Sámi; and Russia v. the Nenets, and the other 40 or so indigenous

peoples of Northern and Eastern Russia. As the former UN Special Rapporteur

on indigenous peoples observed ‘the legacy of colonialism is probably most acute

in the area of expropriation of indigenous lands, territories and resources for

national economic and development interests’ (Daes, 2001: 49–50).

Yet states are frequently reluctant to come to terms with this colonial context

and legacy, and may be particularly reluctant to recognize the legal consequences

of this legacy. In some cases, we can point to a key event which brings about a

transformation. In Norway, for example, we may point to conflict over the

Human rights and indigenous peoples in the Arctic 309

development of the Alta river for hydropower in 1981–1982. This conflict resulted

in huge protests from the entire Sámi population and was supported by many

ethnic Norwegians. It is widely recognized that the revitalization of Sámi politics

in Norway began with this event but, as discussed in Chapter 6 (Bankes, this

volume), this event also triggered the creation of the Sámi Rights Commission,

which led in turn to Norwegian ratification of ILO 169. In Canada one would

point to the constitutional protection of Aboriginal rights in 1982.

A key part of recognizing the colonial context involves the recognition of

indigenous peoples as ‘peoples’ within the framework of international law and as

‘indigenous’. And while formal instruments (e.g. ILO ratification and constitu-

tional provisions; the UN Declaration) may effect this recognition, it may be more

difficult to secure that recognition (and what it may entail in terms of special

measures) within the general population. For example, reports in two papers

published in Northern Norway, Nordlys and Finnmark Dagblad during 2006,

reveal that many ethnic Norwegians believe that there should be equality of treat-

ment between Sámis and ethnic Norwegians, many of whom have lived in the

same area for many generations. Similar views prevail in part of Russia. As the

mayor of Archangelsk puts it: ‘We are all indigenous’.

Law and regulations: an implementation gap?

According to the Permanent Forum on Indigenous Issues, one of the main

challenges that faces indigenous peoples is the implementation of new norms

and laws.

Most indigenous peoples are governed by governments far away

from their localities with limited cultural understanding of indigenous peoples.

Most often decisions are taken without involving relevant indigenous peoples.

Language issues compound the problem. And while we have certainly seen

progress over the last 25 years in the development of constitutional provisions

and laws relating to indigenous peoples, there is a significant ‘implementation

gap’ in some cases between the laws themselves and their effective application

at the local level. Much too often, powerful economic and political interests

actually override the laws themselves, leaving indigenous communities without

due protection of their human rights. According to the Special Rapporteur on

the situation of human rights and fundamental freedoms of indigenous

peoples, Rodolfo Stavenhagen, ‘it is urgent that this issue be addressed fully’

(Stavenhagen, 2003).

The Russian constitution, for example, apparently offers indigenous peoples

important protection, but very few of the indigenous peoples in Russia are recog-

nized as such by the state and, in general, they lack resources and opportunities

to express their views satisfactorily (RAIPON, 2002), although groups like the

Russian Association of Indigenous Peoples of the North do provide some oppor-

tunities. A smaller association, the Indigenous Peoples of the North of Sakhalin

Region, had oil and gas development as one of their major themes at their fifth

congress in October 2004. The association decided to start defending ‘indigenous

peoples’ constitutional rights via protest actions against oil companies violating

310 K. F. Hansen and N. Bankes

indigenous peoples’ rights according to the norms and principles of international

justice and Russian legislation’. RAIPON has supported this move.

Trans-national companies and corporate social responsibility

What are the implications of all of this for oil and gas companies operating in the

traditional territories of indigenous peoples? How should they respond to weak

domestic laws or ‘the implementation gap’? How should this affect the way those

companies develop and apply their own standards of corporate social responsibil-

ity (CSR)? Should those standards reflect the principle of prior informed consent

or should companies defer to the position of the state?

Rodolfo Stavenhagen, the Special Rapporteur on the situation of human rights

and fundamental freedoms of indigenous peoples, has stated:

Sustainable development is essential for the survival and future of indigenous

peoples, whose right to development means the right to determine their own

pace of change, consistent with their own vision of development, including

their right to say no. Free, prior, informed consent is essential for the human

rights of indigenous peoples in relation to major development projects, and

this should involve ensuring mutually acceptable benefit sharing, and mutu-

ally acceptable independent mechanisms for resolving disputes between the

parties involved, including the private sector.

(Stavenhagen, 2001)

Stavenhagen also recommends that ‘Governments and business enterprises work

closely with indigenous peoples and organizations to seek consensus on development

strategies and projects’.

This view is supported by the World Bank, yet not from the

indigenous peoples rights or respect perspective, but from the perspective of the busi-

ness corporation itself. The International Finance Corporation of the World Bank

argues that to break with international accepted human rights standards or indigenous

peoples rights, even if these rights are not part of a states legislature, ‘can have seri-

ous reputational impacts’ and, therefore, recommends businesses to follow ILO 169

(World Bank, 2007: 5). Most operators in the oil and gas industry recognize the

importance of setting environmental, social, health and product stewardship policies

as part of their CSR policies. They are aware that, if they operate within the traditional

territories of indigenous peoples and yet deal solely with the non-indigenous govern-

ment, they will most likely fail to observe certain norms of CSR, thereby damaging

the corporation’s image and reputation (see e.g. Fjellheim, 2006).

Most oil and gas companies also argue that they provide direct benefits to the

communities in which they are operating. These benefits include education and

training, health clinics, transport and communication facilities. They also may

provide significant economic rents to host governments. Yet for many indigenous

peoples this will not be enough. They are all too aware of the short time prefer-

ences of oil and gas companies, and that they will be left with any damages when

the oil and companies have long since extracted their resources and departed;

Human rights and indigenous peoples in the Arctic 311

hence the emphasis on prior informed consent and access to a share of the rents

to supplement any employment opportunities and other potential social and

economic benefits.

Notes

1 No general, internationally accepted, definition of indigenous peoples exists. It is

typical of indigenous populations that they do not represent the dominant population in

the larger society of which they are part, although they may be the population group that

inhabited the area first. As a rule, indigenous populations possess a distinctive culture that

revolves around natural resources, and their way of life differs socially, culturally and/or

linguistically from the dominant population. For the ILO 169 definition, see note 17.

2 The 22,720 Aboriginal people living in Nunavut in 2001 represented over 80 per cent of

the territory’s population. In the Northwest Territories, Aboriginal people represent 45.6

per cent of the total population according to the Canadian Council of Social

Development; see http://www.ccsd.ca/factsheets/demographics/index.htm (Accessed

14 March 2007). In Karasjok and Kautokaino, the Sámi represent the absolute majority.

3 For example, Hammerfest, Alta and Loppa has a tiny minority of Sámi peoples.

In Archanglesk and Murmansk, only a tiny part of the population is made up of

indigenous peoples.

4 The International Covenant on Civil and Political Rights (ICCPR), Articles 1 and 47,

and the International Covenant on Economic, Social and Cultural Rights (ICESCR),

Articles 1 and 25.

5 The concept of permanent sovereignty over natural resources represents customary

international law. Common Article 1 of the International Covenants states that: ‘All

peoples have the right of self-determination. By virtue of that right, they freely deter-

mine their political status and freely pursue their economic, social and cultural devel-

opment. 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

cooperation, based upon the principle of mutual benefit, and international law. In no

case may a people be deprived of its own means of subsistence’. For a discussion of

the close interconnection between the right of self-determination and the right of

peoples/states to permanent sovereignty over natural resources, see Schrijver (1997)

and for an effort to apply the principle of permanent sovereignty in the context of

indigenous peoples, see Daes (2003).

6 It is too early to provide examples of how the UN Declaration on the Rights of

Indigenous Peoples (UNDRIP), adopted September 13, 2007 by the UN General

Assembly against the vote of Canada, USA and Australia, will eventually influence the

behaviour of states and companies towards indigenous peoples.

7 For Norway, see Constitution, Article 26.

8 An Act relating to the strengthening of the status of human rights in Norwegian law

(English translation available at http://www.ub.uio.no/ujur/ulovdata/lov-19990521-030-

eng.pdf).

9 The list does not include the Convention on the Elimination of All Forms of Racial

Discrimination (CERD) or ILO 169.

10 Some of the complexities include the distinction between self-executing and non-

self-executing agreements. The categories of international agreements that fall outside

the scope of the term ‘treaties’ include Executive Agreements (negotiated and ratified

by the Executive) and Congressional Executive Agreements (negotiated by the execu-

tive but ratified by both Houses of Congress rather than just the Senate).

11 See Chapter 10 on Russia in this volume.

12 For example, Article 1(8) of the US Constitution affords to Congress the power to

‘regulate Commerce with foreign Nations and among the several States, and with the

312 K. F. Hansen and N. Bankes

Indian tribes’. This has long been interpreted to restrict the capacity of states to

regulate activities on reservations.

13 See, for example, Donihee et al. (1999) and discussions around the Finnmark Act in

Chapter 9 in this volume.

14 Advisory Opinion, Western Sahara, 1975 International Court of Justice 12.

15 Mabo v. Queensland (1992), 175 Commonwealth Law Reports 1.

16 For an example, see the discussion in Awas Tingni (examined infra) of the law and

practice in Nicaragua.

17 ILO 169 (Article 1(1) applies to ‘peoples in independent countries who are regarded

as indigenous on account of their descent from the populations which inhabited

the country, or a geographical region to which the country belongs, at the time of

conquest or colonisation or the establishment of present state boundaries and who,

irrespective of their legal status, retain some or all of their own social, economic,

cultural and political institutions’.

18 There are only 19 parties to ILO 169 as of October 2007. Norway was the first state

to ratify. Both Sweden and Finland continue to explore ratification. Denmark has rati-

fied for Greenland, but with an important and extensive interpretive declaration. Only

two countries have ratified ILO 169 during the last 5 years.

19 There may be several reasons for this: (1) ILO Conventions generally have a lower

profile in North America; (2) the subject matter of ILO Conventions generally creates

difficult implementation problems for federal states such as the USA and Canada and

(3) objections to the content of ILO 169.

20 Article 13(2) defines the term ‘lands’ to include ‘the concept of territories, which

covers the total environment of the areas which the peoples concerned occupy or

otherwise use’.

21 NRS – the National Association of Norwegian Sámi – is the largest political party

representing the Sámi population in Norway. All presidents to the Sámediggi come

from NSR. It was established in 1968 in order to enhance the rights of the Sámi people

and improve their general living conditions.

22 Available at http://www.nsr.no/website.aspx?displayid=5384 (Accessed 1 November

2006).

23 http://www.nsr.no/website.aspx?displayid=5384 (Accessed 28 August 2006).

24 Samerettsutvalget.

25 The English translation of the legal opinion was published in its entirety as Graver and

Ulfstein (2004). The authors were not asked to comment on the procedural issues and

they took the view that they were being asked to opine upon both whether the bill

violated Sámi rights but also whether it fulfilled Norway’s international obligations.

The bill was also the subject of comment from the International Labour Organization

(ILO; see CEACR: Individual Observation concerning [ILO 169], Norway, published

2004, ilolex document no. 062004NOR169) and from CERD (see Concluding

Observations and Comments, December 10, 2003, CERD/C/63/CO/8 at para. 18).

26 Agreement of May 11, 2005. Translation available at: http://www.regjeringen.

no/en/dep/ud/Documents/Reports-programmes-of-action-and plans/Reports/2005/

Implementation-of-the-international-covenant-on-civil-and-political-

rights.html?id=420420. See also http://www.regjeringen.no/en/dep/aid/Topics/andre/

Internasjonalt_urfolksarbeid/Statement-by-the-Norwegian-Delegation-to.

html?id=467701

27 See, for example, various interviews given by the Sámidiggi President Keskitalo to the

media during the winter of 2006.

28 The agreed consultation procedures can be reached on: http://www.regjeringen.no/

en/dep/aid/Topics/Sami-policy/PROCEDURES-FOR-CONSULTATIONS-

BETWEEN-STA.html?id=450743 (Accessed 16 October 2007).

29 See Aftenposten, February 1, 2006, but especially various interviews in Finnmark

Dagblad and Norlys during March 2006.

Human rights and indigenous peoples in the Arctic 313

30 Posted at www.samiradio.org on November 25, 2005 (Accessed 11 April 2008).

31 www.samiradio.org, posted on November 25, 2005 (Accessed 5 October 2006).

32 The Human Rights Act, discussed earlier. But since Russia takes a monist approach,

the Covenant is automatically part of domestic law.

33 Available at: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/fb7fb12c2fb8bb21c12563ed

004df111?Opendocument. See also the similar 1997 General Recommendation on

Indigenous Peoples of the UN Committee on the Elimination of Racial Discrimination,

which requires states/parties to ‘recognize and protect the rights of indigenous peoples

to own, develop, control and use their communal lands, territories and resources and,

where they have been deprived of their lands and territories traditionally owned or

otherwise inhabited or used without their free and informed consent, to take steps to

return these lands and territories’ (Caruso, Colchester, MacKay et al., 2003: 17).

34 http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/fa24fc7cd513751bc1256fe900525608?

Opendocument.

35 In petitions of this nature, the Committee is frequently faced with the unenviable task

of weighing competing interpretations not only of government conduct in terms of the

degree of consultation but also in terms of the assessment of the effect of the proposed

resource activity on traditional land use activities; see, for example, the Lubicon case

(Canada). One result is that the Committee shows some deference to governments espe-

cially where there is evidence (as there was in Lansman no. 3) that the Article 27 issue

has been squarely raised and considered in litigation in the domestic courts of Finland.

36 The regional efforts include the draft Nordic Sámi Convention [an English

version of the proposed Sámi Nordic Convention is reproduced in Henriksen (2006:

37–38)] and the Draft Inter American Declaration on the Rights of Indigenous

Peoples. For information, see: http://www.oas.org/consejo/CAJP/Indigenousper

cent20documents.asp.

37 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and

Linguistic Minorities 1992, available at: http://www.ohchr.org/english/law/minorities.htm.

38. Azerbaijan, Bangladesh, Bhutan, Burundi, Columbia, Georgia, Kenya, Nigeria,

Russia, Samoa and Ukraine abstained.

39 http://news.gc.ca/web/view/en/index.jsp?articleid=349759&keyword=indigenous+

peoples&keyword=indigenous+peoples& (Accessed 17 October 2007).

40 Press release, September 13, 2007: AFN National Chief Applauds Today’s Passage of

the UN Declaration on the Rights of Indigenous Peoples. Available on:

http://www.afn.ca/article.asp?id=3772 (Accessed 5 November 2007).

41 http://www.docip.org/declaration_last/Arctic_reg_stat.pdf (Accessed 9 October 2007).

42 Press release, September 13, 2007 for the UN General Secretary.

43 See also the efforts of some indigenous peoples to bring their concerns before the

CERD Committee. For a discussion of Maori efforts to request that CERD review New

Zealand’s proposed foreshore legislation under its early warning and urgent action

procedure, see Charters, C. and Erueti, A. (2005) ‘Report from the inside: The CERD

Committee’s Review of the Foreshore and Seabed Act 2004’, Victoria University of

Wellington Law Review, 12.

44 For an example of an ‘Arctic’ petition, see the Petition brought by the Inuit Circumpolar

Conference against the United States in the context of climate change and the US’s fail-

ure to ratify the Kyoto Protocol, December 7, 2005. The Petition is available online at:

http://inuitcircumpolar.com/files/uploads/icc-files/FINALPetition ICC.pdf.

45 Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua Judgment of

August 31, 2001. Available online at: http://www.corteidh.or.cr/docs/casos/articulos/

seriec_79_ing.pdf.

46 Report No. 40/04: Case 12.053, Merits, Maya Indigenous Communities of the Toledo

District and Belize, October 12, 2004.

47 Some caution may be appropriate. For example, the two international covenants do

not protect property rights but the right to equality before the law, which forms part

314 K. F. Hansen and N. Bankes

of the basis for the Commission’s reasoning in the Maya case, is a universally

acclaimed norm.

48 Schrijver (1997) demonstrates that, as originally formulated, the concept of permanent

sovereignty was very closely related to the concept of self-determination and empha-

sized, therefore, that it was peoples that had the right to permanent sovereignty. Over

the years, however, states have succeeded in yoking the concept to states rather than to

peoples. Daes’ (2003) recent contribution to this debate seeks to re-connect the

concept with its historical roots.

49 In Australia, commentators would refer to the Mabo case, supra note 15; and, in New

Zealand, the seminal legal event would be the Treaty of Waitangi Act, creating the

Waitangi Tribunal.

50 Press release, HR/4840, Permanent Forum on Indigenous Issues, May 18, 2005.

51 Document accessed on September 8, 2006 at http://www.npolar.no/ansipra/english/

Index.html.

52 UNESC Commission on Human Rights, Indigenous issues, January 21, 2003

(E/CN.4/2003/90).

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