Lamenting the enduring manifestations of the “Doctrine of Discovery” and other morally condemnable, socially unjust and racist policies used for centuries by colonizers as legal justification to disenfranchise indigenous peoples and seize their lands, the Permanent Forum on Indigenous Issues urged the rejection of such “nefarious” dogmas, and encouraged measures that would redefine relations between native and aboriginal peoples and the State based on justice.
As the Permanent Forum — the United Nations expert advisory body dealing with the human, economic and social rights of indigenous peoples — concluded its eleventh session, it approved a set of nine draft recommendations, highlighted by a text approved on the special theme, the ongoing impact of the Discovery Doctrine on indigenous peoples and the right redress (document E/C.19/2012/L.2). That fifteenth century Christian principle was denounced throughout the session as the “shameful” root of all the discrimination and marginalization indigenous peoples faced today.
The Permanent Forum noted that, while such doctrines of domination and “conquest”, including terra nullis and the Regalian doctrine, were promoted as authority for land acquisition, they also encouraged despicable assumptions: that indigenous peoples were “savages”, “barbarians”, “inferior and uncivilized,” among other constructs the colonizers used to subjugate, dominate and exploit the lands, territories and resources of native peoples. According to the text, signs of such doctrines were still evident in indigenous communities, including in the areas of: health; psychological and social well-being; conceptual and behavioural forms of violence against indigenous women; youth suicide; and the hopelessness that many indigenous peoples experience, in particular indigenous youth.
Noting that the United Nations Declaration on the Rights of Indigenous Peoples, treaty body jurisprudence and case law from all major international human rights institutions confirmed that indigenous peoples hold collective rights to the lands, territories and resources that they had traditionally owned, occupied or otherwise used, the Forum said that “such rights have the same legal status as all other property rights [and] States are no longer allowed to deploy positivist legal interpretations of laws adopted during an era when doctrines such as terra nullis were the norm”. The Declaration also demanded that States rectify past wrongs caused by such doctrines through law and policy reform.
By its text, the Permanent Forum reiterated that redefining the relationship between indigenous peoples and the State was an important way to understand the discovery doctrines and to develop a vision of the future for reconciliation, peace and justice. “To that end, [the Declaration] provides a strong human rights framework and standards for the redress of such false doctrines, notably in articles 3, 28 and 37,” the text states, also encouraging the conduct of the processes of reconciliation “in accordance with the principles of justice, democracy, and respect for human rights, equality, non-discrimination, good governance and good faith”.
In his closing remarks, Grand Chief Edward John, Chairman of the Forum, welcomed the adoption of the recommendations, saying it was indeed necessary to redress the many issues that had emerged over the years the doctrine had been in place. There was a pressing need for indigenous peoples to rediscover and to celebrate their own cultures and heritage. The challenge now was to enter a new area in which the effects of the doctrine of discovery did not continue to be felt by indigenous peoples in the countries in which they lived, he said.
The discussions throughout the session had highlighted that it was important for the Permanent Forum to continue to provide the space for discussion of such issues. He also noted that the high-level event held yesterday to mark the fifth anniversary of the adoption of the Declaration had been “highly successful despite being bumped from the General Assembly Hall at the last minute”. That Declaration was a reaffirmation of the collective rights of all indigenous peoples.
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