The American Declaration on the Rights of Indigenous Peoples
While the UN Declaration was being developed, a parallel human rights instrument was being negotiated within the Organization of American States (OAS). The American Declaration on the Rights of Indigenous Peoples was adopted on 15 June 2016. It`s provisions apply to members states of the OAS.
Many of provisions of the American Declaration use identical or nearly identical language to provisions in the UN Declaration. This further underlines the significance of these provisions. In some instances, provisions in the American Declaration provides further additional elaboration of state responsibilities in respect to rights affirmed in both instruments. There are also provisions in the American Declaration that address concerns that were not included in the UN Declaration.
Both declarations are applicable in Canada and they should be read together. Both instruments require states to live up to the highest relevant standard for human rights protection. Therefore, when there are differences between the two declarations, the higher standard must always apply.
Examples of provisions in the American Declaration that are unique or add to those found in the UN Declaration
2. Self-identification as indigenous peoples will be a fundamental criteria for determining to whom this Declaration applies. The states shall respect the right to such self-identification as indigenous, individually or collectively, in keeping with the practices and institutions of each indigenous people.
Article VII. Gender Equality
1. Indigenous women have the right to the recognition, protection, and enjoyment of all human rights and fundamental freedoms provided for in international law, free of all forms of discrimination.
2. States recognize that violence against indigenous peoples and persons, particularly women, hinders or nullifies the enjoyment of all human rights and fundamental freedoms.
3. States shall adopt the necessary measures, in conjunction with indigenous peoples, to prevent and eradicate all forms of violence and discrimination, particularly against indigenous women and children.
Article IX. Juridical personality
The states shall recognize fully the juridical personality of the indigenous peoples, respecting indigenous forms of organization and promoting the full exercise of the rights recognized in this Declaration.
Article XV. Education
2. States and indigenous peoples, in keeping with the principle of equality of opportunity, shall promote the reduction of disparities in education between indigenous and nonindigenous peoples.
5. States shall promote harmonious intercultural relations, ensuring that the curricula of state educational systems reflect the pluricultural and multilingual nature of their societies and encourage respect for and knowledge of the different indigenous cultures. States shall, in conjunction with indigenous peoples, promote intercultural education that reflects the worldview, histories, languages, knowledge, values, cultures, practices, and ways of life of those peoples.
Article XVII. Indigenous family
2. In matters relating to custody, adoption, severance of family ties, and related matters, the best interests of the child shall be a primary consideration. In determining the best interests of the child, courts and other relevant institutions shall take into account the right of every indigenous child, in community with member of his or her people, to enjoy his or her own culture, to profess and practice his or her own religion or to use his or her own language and in that regard shall look to the indigenous law of the peoples concerned and shall consider their points of view, rights and interest, including the positions of individuals, the family, and the community.
Article XVIII. Health
3. States shall take measures to prevent and prohibit indigenous peoples and individuals from being subject to research programs, biological or medical experimentation, as well as sterilization without their prior, free, and informed consent. Likewise, indigenous peoples and persons have the right, as appropriate, to access to their data, medical records, and documentation of research conducted by individuals and public and private institutions.
4. Indigenous peoples have the right to use, without any discrimination whatsoever, all the health and medical care institutions and services accessible to the general population. States, in consultation and coordination with indigenous peoples, shall promote intercultural systems or practices in the medical and health services provided in indigenous communities, including training of indigenous technical and professional health care personnel.
Article XXII. Indigenous law and jurisdiction
1. 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.
2. The indigenous law and legal systems shall be recognized and respected by the national, regional and international legal systems.
Article XXVIII. Protection of Cultural Heritage and Intellectual Property
3. States, with the full and effective participation of indigenous peoples, shall adopt measures necessary to ensure that national and international agreements and regimes provide recognition and adequate protection for the cultural heritage of indigenous peoples and intellectual property associated with that heritage. In adopting these measures, consultations shall be effective intended to obtain the free, prior, and informed consent of indigenous peoples.