Chapter 2: The content of the Declaration: Equality and non-discrimination; cultural integrity; and collective rights

1. The right to equality and non-discrimination

The Committee on the Elimination of Racial Discrimination has clarified that the term “non-discrimination” does not signify the necessity of uniform treatment when there are significant differences in the situation between one person or group and another, or, in other words, if there is an objective and reasonable justification for differential treatment.³⁵ It is important that States take into consideration the special characteristics of indigenous peoples in applying the principle of non-discrimination in their law and practice.

The Declaration provides that indigenous peoples and individuals are free and equal to all other peoples and that indigenous individuals have the right to be free from any kind of discrimination in the exercise of their rights.³⁶ It specifically calls on States to take measures to combat prejudices and eliminate discrimination; promote good relations between indigenous and non-indigenous people; and provide effective mechanisms for the prevention of, and redress for, any form of propaganda designed to promote or incite racial or ethnic discrimination directed against indigenous peoples.³⁷

The right to equality and non-discrimination requires that States combat both formal and substantive or de facto forms of discrimination. The elimination of formal discrimination may require that a State’s constitution, legislation, regulations or policies do not discriminate against indigenous peoples. The elimination of de facto discrimination requires States to implement laws and policies that facilitate substantive equality for indigenous peoples in the enjoyment of their rights. The obligation to eliminate discrimination and provide for equality requires States to regulate the conduct of both public and private actors, as well as implement policies that provide for substantive equality.³⁸

In the context of indigenous peoples, the right to equality and non-discrimination is viewed as offering a dual protection. On the one hand, it focuses on the conditions inherently required to maintain indigenous peoples’ way of life and, on the other, it focuses on attitudes and behaviour that exclude or marginalize indigenous peoples from the wider society.³⁹

The Expert Mechanism has noted, however, that some States appear to perceive a conflict between the rights enshrined in the Declaration and the principle of equality. Some States are of the view that the principle of equality prohibits States from treating any one group differently from another group. In particular, some States interpret the right to equality as prohibiting specialized programmes that target indigenous peoples. However, the Expert Mechanism has stressed that, in order to achieve substantive equality, it may be necessary to treat indigenous peoples as a distinct group experiencing unique circumstances.⁴⁰ Similarly, the Inter-American Commission on Human Rights has held that it is a well-established principle in international law that unequal treatment towards persons in unequal situation does not amount to discrimination.⁴¹ In the same vein, the Committee on the Elimination of Racial Discrimination has held that:

… to treat in an equal manner persons or groups whose situations are objectively different will constitute discrimination in effect, as will the unequal treatment of persons whose situations are objectively the same.⁴²

ILO Convention No. 169, the Inter-American Court of Human Rights and the United Nations treaty bodies have recognized the need for “special measures” for indigenous peoples. These are measures intended to remedy past discrimination or to correct contemporary inequalities.

It has been held that special measures are required for indigenous peoples owing to their greater vulnerability, their historical experiences of marginalization and discrimination and the disproportionate impact that continuing human rights violations have on them.⁴³ The Committee on Economic, Social and Cultural Rights has specifically held that, where discrimination of a particular group has been pervasive, States should take a systematic approach to eliminating such discrimination.⁴⁴

The Committee on the Elimination of Racial Discrimination has drawn attention to the distinction between special and temporary measures for the advancement of ethnic groups on the one hand, and the permanent rights of indigenous peoples on the other.⁴⁵ It has clarified that the rights of indigenous peoples, including rights to lands traditionally occupied by them, are permanent rights which should not be confused with temporary special measures. “States parties should carefully observe distinctions between special measures and permanent human rights in their law and practice. The distinction between special measures and permanent rights implies that those entitled to permanent rights may also enjoy the benefits of special measures.”⁴⁶

Such an approach may often require States to devote greater resources to particularly vulnerable groups.⁴⁷ When adopting measures to provide for substantive equality, it is important that States also facilitate the right of indigenous peoples to participate in decision-making in matters that concern them. States should ensure that special measures are designed and implemented on the basis of prior consultation with affected communities and the active participation of these communities.⁴⁸ At the same time, the adoption of special measures should not undermine recognition afforded to indigenous peoples’ rights as distinct and permanent rights.⁴⁹

Examples of special measures can be seen in the recognition afforded by some States to the collectively-held land rights of indigenous peoples.⁵⁰ The African Commission on Human and Peoples’ Rights held in the Endorois case that such special measures are necessary in order to address the discrimination experienced by indigenous peoples under a property system that did not give recognition to the communal property rights of the Endorois people.⁵¹ In the Saramaka case, the Inter-American Court held that:

… the aim and purpose of special measures required on behalf of members of indigenous and tribal communities is to guarantee that they may continue living their traditional way of life, and that their distinct cultural identity, social structure, economic system, customs, beliefs and traditions are respected, guaranteed and protected by states.⁵²

The Special Rapporteur on the rights of indigenous peoples has cautioned that a holistic approach must be adopted when developing special measures to address inequalities. In particular, policies that address substantive inequalities must not be limited to social and economic aspects of indigenous lives, but must also address the right to self-determination, the right to maintain distinct cultural identities and the right to maintain relationships with traditional lands.⁵³ Thus, efforts to address substantive inequality must be adopted in collaboration with indigenous peoples, allowing them to take control of their own affairs, in accordance with their cultures and beliefs.

The Declaration also draws special attention to the position of indigenous women and children and requires that they enjoy full protection against all forms of discrimination.⁵⁴ In particular, all rights in the Declaration must be equally enjoyed by indigenous men and women.⁵⁵ It is important to note that policies that discriminate against indigenous peoples may impact disproportionately on indigenous women owing to their gender.⁵⁶ The Expert Mechanism has commended national-level programmes which, as well as seeking to redress imbalances between non-indigenous and indigenous peoples, specifically seek to ensure equality among indigenous men and women.⁵⁷ In this regard, it is important that States empower indigenous women, ensure their participation in the design, delivery and monitoring of programmes, and build on indigenous women’s own initiatives.

At times, tensions have been perceived between the right to equality and indigenous peoples’ right to culture. It has been argued that indigenous traditions and customs can be discriminatory, especially towards women. For example, some cultural practices may inhibit education of the girl-child or prevent women from inheriting land or participating in decision-making processes.⁵⁸ The Expert Mechanism has cautioned that such practices should not be assessed from a non-indigenous perspective. What may be perceived as discrimination should be understood within indigenous cultural practices and historical contexts. When assessing such practices, the perspective of the victim of the allegedly discriminatory practice should be prioritized. Indeed, the perspective of indigenous women is often unique and different from the perspectives of non-indigenous women. At the same time, discrimination against individuals should be eliminated.⁵⁹

Article 46 (2) of the Declaration states that any limitation must be “in accordance with international human rights obligations”. It must also be “non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society”.