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Mililani Trask's 5- part series: contributions to the preservation and legal case precedent of Native Hawaiian Rights
In the 1990’s there arose 3 cases that changed the course of history on Hawaii.
These cases impacted not only our trust lands but also State policy regarding how our natural resources should be viewed. These cases not only expanded legal protections for Hawaiian cultural rights, but they set precedents that continue today under our State Public Trust Doctrine.
The first case was the Waiaohole Ditch case, this was followed by the Pele defense case & finally the PASH case. I became involved in all 3 cases because KaLahui Hawaii was a plaintiff in two of the cases (Waiahole & PASH) and my law firm was involved in the Pele case.
These cases impacted not only our trust lands but also State policy regarding how our natural resources should be viewed. These cases not only expanded legal protections for Hawaiian cultural rights, but they set precedents that continue today under our State Public Trust Doctrine.
The first case was the Waiaohole Ditch case, this was followed by the Pele defense case & finally the PASH case. I became involved in all 3 cases because KaLahui Hawaii was a plaintiff in two of the cases (Waiahole & PASH) and my law firm was involved in the Pele case.
Drafting & passage o f the United Nations Declaration on the Rights of Indigenous Peoples by Mililani B. Trask
The most significant initiative ever undertaken in the history of human rights transpired over a period of 22 years (1985 - 2007) during which time indigenous leaders from the seven global regions traveled to the United Nations to battle the most powerful States and Governments of the world for the establishment of standards to safeguard the human rights and fundamental freedoms of the world’s 370+ million indigenous peoples.
The debates that occurred during this time were far ranging and much more substantive than those that occurred when the international human rights Conventions were debated and adopted in the late 1950’s and early 1960’s. This was because notions of political and ethnic superiority that pervaded western law during the colonial period had influenced the evolution of international human rights law. These racist perceptions, which were widely held by States and the UN System, were reflected in evolving international human rights law as distinctions between and among certain classes of human beings. Some human beings were ‘peoples’ possessed of the right of self-determination and entitled to the human rights set forth in the United Nations Human Rights Conventions. Other human beings, who were referred to as ‘minorities’, ‘populations’ and ‘people’, were not ‘peoples’ and consequently were not entitled to the protections of human rights law. The worlds’ indigenous peoples fell into the latter category and were denied the collective right of self-determination until the adoption of the United Nations Declaration on the Rights of Indigenous Peoples in 2007.
HISTORY:
In 1982, José R. Martinez Cobo, the Special Rapporteur of the Sub-commission on the Prevention of Discrimination and Protection of Minorities, released a study about the systemic discrimination faced by Indigenous peoples worldwide. His “Study of the Problem of Discrimination against Indigenous Populations” prompted the UN Economic and Social Council (UNECOSOC) to create the Working Group on Indigenous Populations (WGIP); its role was to make recommendations to the Commission of Human Rights through the Sub-commission, on matters & issues relating to Indigenous Peoples from a human rights perspective.
Comprised of five independent experts as well as Indigenous advisors, the WGIP worked in consultation with Indigenous representatives globally, to draft a declaration on the Rights of Indigenous Peoples. The initial draft was developed over eight years, and was submitted in 1993 to the Sub-commission on the Prevention of Discrimination and Protection of Minorities (now known as the
Sub commission on the Promotion and Protection of Human Rights), who approved it the following year. Upon its approval, the draft declaration was sent to the Commission of Human Rights, which established a second Working
Group (the Intersessional Working Group) consisting of human rights experts and over 100 Indigenous organizations. The second Working Group labored for 10 years before obtaining passage of the Declaration on the Rights of Indigenous Peoples. During those years the United Nations hosted the most comprehensive and difficult debates on human rights that have ever been entertained by the States or the UN itself.
Adoption of the DRIP:
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was finally adopted by the United Nations on September 13, 2007. It enshrines (according to Article 43) the rights that “constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.” The UNDRIP protects collective rights of indigenous peoples, it also safeguards the individual rights of Indigenous people. The Declaration is the product of almost 25 years of deliberation by U.N. member states and Indigenous peoples and nations.
The UNDRIP was adopted by 144 countries, with 11 abstentions and 4 countries voting against it. These four countries were Canada, the USA, New Zealand, and Australia. These States later reversed their positions, but have continued to question and advance “reservations” & “State interpretations” of the language in the DRIP.
The Declaration guarantees the rights of Indigenous peoples to enjoy and practice their cultures and customs, their religions, and their languages, and to develop and strengthen their economies and their social and political institutions. It also sets out many other rights including the right to be free from discrimination, and the right to a nationality.
The Declaration affirms the principle of Universality of Human Rights by setting forth with clarity and brevity the individual and collective rights of Indigenous Peoples. These rights are addressed with specificity in the provisions of the Declaration. They include but are not limited to: the right to self-determination and self-government (arts. 3 and 4); the right to recognition and enforcement of treaties ( art. 37); the right to identity and membership, (arts. 33 and 35); the right to education (art. 14); the right to subsistence and development, (arts. 20(2), 23 and 32); the right to live in freedom, peace and security, (arts. 7(2)); the right to practice their traditions, customs, and protect their cultural heritage and intellectual property, (arts. 11(1), 12, 13, 15 and 31); the right to maintain and strengthen their distinct institutions, (arts. 5, 18, 20(1), 33(2) and 34; the right to their lands, territories and resources, (arts. 10 and 25-30); the right to their traditional medicines and health practices, (art. 24(1)); the right to conservation and protection of the environment, (arts. 29 and 32(3), labor, (art. 17); and the right to cross border contacts and co-operation, (art. 36).
Hawaiian and Pacific Indigenous Participation in the DRIP:
Cayuga chief of the Iroquois Confederacy, Deskahe, was sent to the League of Nations in Geneva in 1922 to apply for membership and to try to influence it to become an egalitarian system. Two years later, in 1924 a group of Maori from Aotearoa, including Tahupōtiki Wiremu Ratana travelled to Europe to present a petition to the League of Nations on land confiscations and the Treaty of Waitangi.
From that time forward, Indigenous peoples, including pacific peoples, have attended and interfaced with the International bodies seeking justice for human rights abuses that occurred historically and continue to the present. Hawaiian participation began in the 1960’s with the work of Kawaipuna Prejean and Haunani-Kay Trask who attended the ‘Indian Summer’ consultation in Geneva, laying the foundation that Hawaiians would later follow in Geneva. Hawaiians submitted interventions throughout the Declarations drafting & continue to work for its implementation today. Hawaiians submitted lengthily interventions & documents for the Study on Treaties undertaken by Miguel Martinez, Special Rapporteur from Cuba and also attended the numerous global consultations pursued by the United Nations in the 1990’s. Hawaiian intervention and all of the Indigenous intervention can be obtained by contacting DOCIP, the Document Center for Indigenous Peoples, in Geneva, Switzerland.
Using the Declaration as an Interpretive Standard for Human Rights Conventions – Making the Declaration Binding
Under international law, Declarations are not considered to be binding on States. This means that Declarations are “aspirational” statements but they do not impose obligations or responsibilities on States. Conventions are binding on States. This means that States are required to meet obligations set forth in Conventions and can be held accountable for human rights violations where their actions abridge provisions of the Convention.
While this principle is generally accurate, it cannot be applied to the Declaration on the Rights of Indigenous Peoples when it is used as an interpretive standard for State obligations contained in Human Rights Conventions and where the obligation, or alleged violation, pertains to indigenous peoples. In these cases the provisions of the Declaration are binding on States. This development in international law is extremely important for indigenous peoples because it means that indigenous advocates can use the Declarations’ provisions when challenging State compliance with their binding human rights obligations under the Human Rights Conventions.
International Treaty Bodies have made it clear that whenever issues relating to human rights violations against indigenous peoples by States are raised they will utilize the Declaration as the interpretive standard by which to judge State compliance under the Conventions. Treaty bodies have also begun to issue General Comments relating to the applicability of the Declarations’ provisions when interpreting State obligations under binding Conventions.
Treaty Bodies have not been convinced by arguments advanced by States that the Declarations provisions do not apply to them because they did not vote for its passage.
This argument was tried by the United States of America but was rejected by the Committee on the Elimination of Racial Discrimination which stated in its concluding observations … “While noting the position of the State party with regard to the United Nations Declaration on the Rights of Indigenous Peoples…The Committee finally recommends that the declaration be used
as a guide to interpret the State party’s obligations under the Convention relating to indigenous peoples.” See: Committee on the Elimination of Racal Discrimination, Concluding observations of the Committee on the Elimination of Racial Discrimination: USA, UN Doc. CERD/C/USA/CO/6 (8 May 2008) para.29.
The debates that occurred during this time were far ranging and much more substantive than those that occurred when the international human rights Conventions were debated and adopted in the late 1950’s and early 1960’s. This was because notions of political and ethnic superiority that pervaded western law during the colonial period had influenced the evolution of international human rights law. These racist perceptions, which were widely held by States and the UN System, were reflected in evolving international human rights law as distinctions between and among certain classes of human beings. Some human beings were ‘peoples’ possessed of the right of self-determination and entitled to the human rights set forth in the United Nations Human Rights Conventions. Other human beings, who were referred to as ‘minorities’, ‘populations’ and ‘people’, were not ‘peoples’ and consequently were not entitled to the protections of human rights law. The worlds’ indigenous peoples fell into the latter category and were denied the collective right of self-determination until the adoption of the United Nations Declaration on the Rights of Indigenous Peoples in 2007.
HISTORY:
In 1982, José R. Martinez Cobo, the Special Rapporteur of the Sub-commission on the Prevention of Discrimination and Protection of Minorities, released a study about the systemic discrimination faced by Indigenous peoples worldwide. His “Study of the Problem of Discrimination against Indigenous Populations” prompted the UN Economic and Social Council (UNECOSOC) to create the Working Group on Indigenous Populations (WGIP); its role was to make recommendations to the Commission of Human Rights through the Sub-commission, on matters & issues relating to Indigenous Peoples from a human rights perspective.
Comprised of five independent experts as well as Indigenous advisors, the WGIP worked in consultation with Indigenous representatives globally, to draft a declaration on the Rights of Indigenous Peoples. The initial draft was developed over eight years, and was submitted in 1993 to the Sub-commission on the Prevention of Discrimination and Protection of Minorities (now known as the
Sub commission on the Promotion and Protection of Human Rights), who approved it the following year. Upon its approval, the draft declaration was sent to the Commission of Human Rights, which established a second Working
Group (the Intersessional Working Group) consisting of human rights experts and over 100 Indigenous organizations. The second Working Group labored for 10 years before obtaining passage of the Declaration on the Rights of Indigenous Peoples. During those years the United Nations hosted the most comprehensive and difficult debates on human rights that have ever been entertained by the States or the UN itself.
Adoption of the DRIP:
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was finally adopted by the United Nations on September 13, 2007. It enshrines (according to Article 43) the rights that “constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.” The UNDRIP protects collective rights of indigenous peoples, it also safeguards the individual rights of Indigenous people. The Declaration is the product of almost 25 years of deliberation by U.N. member states and Indigenous peoples and nations.
The UNDRIP was adopted by 144 countries, with 11 abstentions and 4 countries voting against it. These four countries were Canada, the USA, New Zealand, and Australia. These States later reversed their positions, but have continued to question and advance “reservations” & “State interpretations” of the language in the DRIP.
The Declaration guarantees the rights of Indigenous peoples to enjoy and practice their cultures and customs, their religions, and their languages, and to develop and strengthen their economies and their social and political institutions. It also sets out many other rights including the right to be free from discrimination, and the right to a nationality.
The Declaration affirms the principle of Universality of Human Rights by setting forth with clarity and brevity the individual and collective rights of Indigenous Peoples. These rights are addressed with specificity in the provisions of the Declaration. They include but are not limited to: the right to self-determination and self-government (arts. 3 and 4); the right to recognition and enforcement of treaties ( art. 37); the right to identity and membership, (arts. 33 and 35); the right to education (art. 14); the right to subsistence and development, (arts. 20(2), 23 and 32); the right to live in freedom, peace and security, (arts. 7(2)); the right to practice their traditions, customs, and protect their cultural heritage and intellectual property, (arts. 11(1), 12, 13, 15 and 31); the right to maintain and strengthen their distinct institutions, (arts. 5, 18, 20(1), 33(2) and 34; the right to their lands, territories and resources, (arts. 10 and 25-30); the right to their traditional medicines and health practices, (art. 24(1)); the right to conservation and protection of the environment, (arts. 29 and 32(3), labor, (art. 17); and the right to cross border contacts and co-operation, (art. 36).
Hawaiian and Pacific Indigenous Participation in the DRIP:
Cayuga chief of the Iroquois Confederacy, Deskahe, was sent to the League of Nations in Geneva in 1922 to apply for membership and to try to influence it to become an egalitarian system. Two years later, in 1924 a group of Maori from Aotearoa, including Tahupōtiki Wiremu Ratana travelled to Europe to present a petition to the League of Nations on land confiscations and the Treaty of Waitangi.
From that time forward, Indigenous peoples, including pacific peoples, have attended and interfaced with the International bodies seeking justice for human rights abuses that occurred historically and continue to the present. Hawaiian participation began in the 1960’s with the work of Kawaipuna Prejean and Haunani-Kay Trask who attended the ‘Indian Summer’ consultation in Geneva, laying the foundation that Hawaiians would later follow in Geneva. Hawaiians submitted interventions throughout the Declarations drafting & continue to work for its implementation today. Hawaiians submitted lengthily interventions & documents for the Study on Treaties undertaken by Miguel Martinez, Special Rapporteur from Cuba and also attended the numerous global consultations pursued by the United Nations in the 1990’s. Hawaiian intervention and all of the Indigenous intervention can be obtained by contacting DOCIP, the Document Center for Indigenous Peoples, in Geneva, Switzerland.
Using the Declaration as an Interpretive Standard for Human Rights Conventions – Making the Declaration Binding
Under international law, Declarations are not considered to be binding on States. This means that Declarations are “aspirational” statements but they do not impose obligations or responsibilities on States. Conventions are binding on States. This means that States are required to meet obligations set forth in Conventions and can be held accountable for human rights violations where their actions abridge provisions of the Convention.
While this principle is generally accurate, it cannot be applied to the Declaration on the Rights of Indigenous Peoples when it is used as an interpretive standard for State obligations contained in Human Rights Conventions and where the obligation, or alleged violation, pertains to indigenous peoples. In these cases the provisions of the Declaration are binding on States. This development in international law is extremely important for indigenous peoples because it means that indigenous advocates can use the Declarations’ provisions when challenging State compliance with their binding human rights obligations under the Human Rights Conventions.
International Treaty Bodies have made it clear that whenever issues relating to human rights violations against indigenous peoples by States are raised they will utilize the Declaration as the interpretive standard by which to judge State compliance under the Conventions. Treaty bodies have also begun to issue General Comments relating to the applicability of the Declarations’ provisions when interpreting State obligations under binding Conventions.
Treaty Bodies have not been convinced by arguments advanced by States that the Declarations provisions do not apply to them because they did not vote for its passage.
This argument was tried by the United States of America but was rejected by the Committee on the Elimination of Racial Discrimination which stated in its concluding observations … “While noting the position of the State party with regard to the United Nations Declaration on the Rights of Indigenous Peoples…The Committee finally recommends that the declaration be used
as a guide to interpret the State party’s obligations under the Convention relating to indigenous peoples.” See: Committee on the Elimination of Racal Discrimination, Concluding observations of the Committee on the Elimination of Racial Discrimination: USA, UN Doc. CERD/C/USA/CO/6 (8 May 2008) para.29.
Lands, territories, & Resources-UN GEneral Assembly Address
“The gradual deterioration of indigenous societies can be traced to the non-recognition of the profound relationship that indigenous peoples have to their lands, territories and resources, as well as the lack of recognition of other fundamental human rights. The natural order of life for indigenous peoples has been and continues to be threatened by a different order, one which is no longer dictated by the natural environment and the indigenous peoples’ relationship to it. Indigenous societies in a number of countries are in a state of rapid deterioration and change due in large part to the denial of the rights of the indigenous peoples to lands, territories and resource.” [1]
I. Indigenous Perspectives
The profound relationship of Indigenous Peoples to their lands, territories & resources has been the primary and urgent concern of Indigenous peoples globally for decades. Several UN Human Rights Experts including Special Rapporteurs M. Alfonso Martinez, Mdm. Erica Irene Daes, and Enrique Chaves have documented this. [2]
Martinez summarized the issue: “The first general conclusion concerns the issue of recognition of indigenous peoples right to their lands and their resources, and to continue engaging, unmolested, in their traditional economic activities on those lands. This is the paramount problem to be addressed in any effort to establish a more solid, equitable and durable relationship between the indigenous and non-indigenous sectors in multinational societies. Owing to their special relationship, spiritual and material, with their lands, the Special Rapporteur believes that very little or no progress can be made in this regard without tackling, solving and redressing - in a way acceptable to the indigenous peoples concerned - the question of their uninterrupted dispossession of this unique resource, vital to their lives and survival.”
Erica Daes found the following: “Reports and statements by indigenous peoples from all parts of the world delivered during sessions of the Working Group on Indigenous Populations and information received in the preparation of the working paper have made it clear that land and resource issues, particularly the dispossession of indigenous peoples from their lands, are issues of the most urgent and fundamental nature. ”
Rapporteur Chavez supported these conclusions: “In their interventions on the provisions of the declaration concerning lands, territories and natural resources, all indigenous representatives emphasized the critical importance of their relationship with their lands, territories and resources for their survival, their spiritual, economic, social and cultural well-being, and the effective exercise of indigenous self-determination.”
II. United Nations Declaration on the Rights of Indigenous Peoples, Human Rights Conventions & Other International Standards – Land & Resource Rights linked to the Right to Self-determination and the Right to Development.
Article 26 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) recognizes not only that Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned and occupied, but that they have also the right to own, use and develop their lands, territories and resources. It imposes on States the obligation to legally recognize these land & resource rights but requires that State recognition shall be conducted with due respect to the customs, traditions and land tenure systems of indigenous.
From a human rights perspective, the foundation of Indigenous peoples rights to lands, territories and resources must be the right of self-determination under international law. Indigenous rights to lands, [3] territories and resources [4] are inextricably linked to the human right to self-determination and the right to development. [5] This is because the right of self-determination acknowledges and protects the right of all peoples to freely pursue economic, cultural and social development. [6] Without adequate lands and resources, Indigenous peoples will be pushed to the edge of economic, cultural and political extinction. Indigenous peoples must not be deprived of their means of subsistence that for them has vital economic, social, cultural, spiritual and political dimensions. [7]
The lands, territories and resources of Indigenous peoples are essential for their survival and well being, as well as the effective exercise of self-government. [8] It is now well established that denial or infringements of their collective land and resource rights result in a potentially wide range of human rights violations.
The right to natural resources is not limited to States. The two international human rights Covenants explicitly refer to the right of all “peoples” to enjoy and utilize fully and freely their natural wealth and resources as ‘inherent’ rights. Article 1 of the international human rights Covenants includes the right of peoples to “permanent sovereignty over their natural resources”. Permanent sovereignty over resources is a collective human right. It is a right of peoples to long-term control over their resources. The principle of permanent sovereignty over resources is said to be a peremptory norm or jus cogens. [9]
A recent U.N. study on this subject concludes that this right applies to Indigenous peoples. The term “sovereignty” in this context is said to mean “legal, governmental control and management authority over natural resources”, particularly as an aspect of the
exercise of the right of self-determination. Marginalization from the benefits of natural resources or related forms of discrimination would be a violation of Indigenous peoples right of self-determination. [10]
The U.N. Human Rights Committee and the Committee on Economic, Social and Cultural Rights have explicitly applied the natural resource rights aspects of self- determination (in Article 1, para. 2 of the international human rights Covenants to addition, in regard to Indigenous peoples) to indigenous peoples. The U.N. treaty bodies through their general comments contribute to the clarification of the legal and policy ramifications of the implementation of the human rights standards. [11]
From an equality and non-discrimination perspective, the U.N. Committee on the Elimination of Racial Discrimination has underlined that Indigenous peoples have the “right to own, develop, control and use their communal lands, territories and resources”. The CERD recommended that States take “urgent measures” to return these lands to Indigenous peoples, and issued General Recommendation XXIII which is specifically on point. [12]
Conclusions RE: the UNDRIPs application to the Rights of Indigenous Peoples to Land, Territories & Resources:
Declarations are considered to be non-binding on States under international law, they are viewed as ‘aspirational’. While his was the case when the UNDRI was initially passed, this is no longer the case.
The Treaty Bodies have made it clear that they will use the UNDRIP as ‘thee’ interpretive guide for determining whether a State has met its human rights obligations to indigenous peoples under the binding human rights Conventions. In addition, decisions of international courts & tribunals such as the African Commission on Human and Peoples’ Rights in the “Endorois Case” clearly demonstrate that such bodies are applying the standards in the DRIP to State obligations.
III. Post 2015 Development Agenda, Poverty alleviation & Sustainable Development “For indigenous peoples, secure, effective, collective ownership rights over the lands, territories, and resources they have traditionally owned or otherwise occupied and used are fundamental to economic and social development, to physical and cultural integrity, to livelihoods and sustenance. Secure rights to own and control lands, territories, and resources are also essential for the maintenance of the worldviews and spirituality of indigenous peoples in short, to their very survival as viable territorial communities. Without secure and enforceable property rights, indigenous peoples means of subsistence are permanently threatened. Loss or degradation of land and resources results in deprivation of the basics required to sustain life and to maintain an adequate standard of living. Failure to recognize and respect these rights undermines efforts to alleviate poverty and to achieve sustainable development.” [13]
One of the goals of the Post 2015 Development Agenda is to alleviate poverty, another is to support & achieve sustainable development and economic self-sufficiency for States, civil society and all peoples (including Indigenous peoples). These goals can be attained if indigenous rights to Land Territories & Resources are respected and acknowledged & Indigenous peoples are involved with, benefit from, and give their free, prior and informed consent to development on their lands, in their territories. In addition, Indigenous peoples, through their own governing mechanisms, must be able to participate meaningfully from development of their own resources. This approach has been recommended as an appropriate human rights based approach to problems arising with extractive industries and was, in fact the approach recommended in the Extractive Industry Report. [13]
U.N. Commission on Human Rights, Global Consultation on the Realization of the Right to Development as a Human Right: Report prepared by the Secretary-General pursuant to Commission on Human Rights resolution 1989/45, U.N. Doc. E/CN.4/1990/9/ Rev. 1, 26 September 1990, para. 104 found that… “The experience of indigenous peoples and development clearly demonstrated that human rights and development are inseparable, for the abuse of the rights of indigenous peoples is principally a development issue. Forced development has deprived them of their human rights, in particular the right to life and the right to their own means of subsistence, two of the most fundamental of all rights. Indigenous peoples have been, in fact, victims of development policies that deprive them of their economic base - land and resources.” [14]
Concluding Remarks: Demilitarization is still the missing link
For the world 400 + million Indigenous Peoples, ownership use & development of their traditional lands, territories & resources is the basis for their biological, political, economic, and cultural survival. In recent years States & all of Civil Society have come to realize that the issue of Indigenous land & resource rights is critically linked to the global issues of sustainable development and the right of self-determination of all peoples – those who are Indigenous & those who are not.
In many Indigenous regions of the world, militarism & military occupation of Indigenous lands & territories by State forces continues to exist. Militarism, military violence and Language pertaining to this important area of concern has been omitted from the outcome document because some States continue to believe that their military interventions and activities on Indigenous lands and in Indigenous territories will facilitate the continued taking of Indigenous resources for extractive industries & will further their military and economic agenda. History shows us this is wrong. Until this issue is addressed it is unlikely that States and Indigenous Peoples will realize the goals of global sustainable development.
The Indigenous Caucus and Experts express their profound sadness and concern with the continuing refusal of States to support demilitarization on Indigenous Lands, Territories & resources. Militarism is the complete antithesis of self-sufficiency and economic stability. If we work together t turn every instrument of war into plowshares, we can meet our goal of food security. Every dollar spent on war is one less dollar for poverty
alleviation, education, health & housing.
This matter was addressed by the Working Group on Indigenous Populations in 2006. [See A/HRC/Sub.1/58/22*, 14 August 2006.] as well as in the Report entitles State of the Worlds Indigenous Peoples, Department of Economic and Social Affairs, (DESA) ST/ESA/328, 2009.
Mililani B. Trask, Indigenous Human Rights Expert, Pacific Region
Citations
WCIP Briefing
I. Indigenous Perspectives
The profound relationship of Indigenous Peoples to their lands, territories & resources has been the primary and urgent concern of Indigenous peoples globally for decades. Several UN Human Rights Experts including Special Rapporteurs M. Alfonso Martinez, Mdm. Erica Irene Daes, and Enrique Chaves have documented this. [2]
Martinez summarized the issue: “The first general conclusion concerns the issue of recognition of indigenous peoples right to their lands and their resources, and to continue engaging, unmolested, in their traditional economic activities on those lands. This is the paramount problem to be addressed in any effort to establish a more solid, equitable and durable relationship between the indigenous and non-indigenous sectors in multinational societies. Owing to their special relationship, spiritual and material, with their lands, the Special Rapporteur believes that very little or no progress can be made in this regard without tackling, solving and redressing - in a way acceptable to the indigenous peoples concerned - the question of their uninterrupted dispossession of this unique resource, vital to their lives and survival.”
Erica Daes found the following: “Reports and statements by indigenous peoples from all parts of the world delivered during sessions of the Working Group on Indigenous Populations and information received in the preparation of the working paper have made it clear that land and resource issues, particularly the dispossession of indigenous peoples from their lands, are issues of the most urgent and fundamental nature. ”
Rapporteur Chavez supported these conclusions: “In their interventions on the provisions of the declaration concerning lands, territories and natural resources, all indigenous representatives emphasized the critical importance of their relationship with their lands, territories and resources for their survival, their spiritual, economic, social and cultural well-being, and the effective exercise of indigenous self-determination.”
II. United Nations Declaration on the Rights of Indigenous Peoples, Human Rights Conventions & Other International Standards – Land & Resource Rights linked to the Right to Self-determination and the Right to Development.
Article 26 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) recognizes not only that Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned and occupied, but that they have also the right to own, use and develop their lands, territories and resources. It imposes on States the obligation to legally recognize these land & resource rights but requires that State recognition shall be conducted with due respect to the customs, traditions and land tenure systems of indigenous.
From a human rights perspective, the foundation of Indigenous peoples rights to lands, territories and resources must be the right of self-determination under international law. Indigenous rights to lands, [3] territories and resources [4] are inextricably linked to the human right to self-determination and the right to development. [5] This is because the right of self-determination acknowledges and protects the right of all peoples to freely pursue economic, cultural and social development. [6] Without adequate lands and resources, Indigenous peoples will be pushed to the edge of economic, cultural and political extinction. Indigenous peoples must not be deprived of their means of subsistence that for them has vital economic, social, cultural, spiritual and political dimensions. [7]
The lands, territories and resources of Indigenous peoples are essential for their survival and well being, as well as the effective exercise of self-government. [8] It is now well established that denial or infringements of their collective land and resource rights result in a potentially wide range of human rights violations.
The right to natural resources is not limited to States. The two international human rights Covenants explicitly refer to the right of all “peoples” to enjoy and utilize fully and freely their natural wealth and resources as ‘inherent’ rights. Article 1 of the international human rights Covenants includes the right of peoples to “permanent sovereignty over their natural resources”. Permanent sovereignty over resources is a collective human right. It is a right of peoples to long-term control over their resources. The principle of permanent sovereignty over resources is said to be a peremptory norm or jus cogens. [9]
A recent U.N. study on this subject concludes that this right applies to Indigenous peoples. The term “sovereignty” in this context is said to mean “legal, governmental control and management authority over natural resources”, particularly as an aspect of the
exercise of the right of self-determination. Marginalization from the benefits of natural resources or related forms of discrimination would be a violation of Indigenous peoples right of self-determination. [10]
The U.N. Human Rights Committee and the Committee on Economic, Social and Cultural Rights have explicitly applied the natural resource rights aspects of self- determination (in Article 1, para. 2 of the international human rights Covenants to addition, in regard to Indigenous peoples) to indigenous peoples. The U.N. treaty bodies through their general comments contribute to the clarification of the legal and policy ramifications of the implementation of the human rights standards. [11]
From an equality and non-discrimination perspective, the U.N. Committee on the Elimination of Racial Discrimination has underlined that Indigenous peoples have the “right to own, develop, control and use their communal lands, territories and resources”. The CERD recommended that States take “urgent measures” to return these lands to Indigenous peoples, and issued General Recommendation XXIII which is specifically on point. [12]
Conclusions RE: the UNDRIPs application to the Rights of Indigenous Peoples to Land, Territories & Resources:
Declarations are considered to be non-binding on States under international law, they are viewed as ‘aspirational’. While his was the case when the UNDRI was initially passed, this is no longer the case.
The Treaty Bodies have made it clear that they will use the UNDRIP as ‘thee’ interpretive guide for determining whether a State has met its human rights obligations to indigenous peoples under the binding human rights Conventions. In addition, decisions of international courts & tribunals such as the African Commission on Human and Peoples’ Rights in the “Endorois Case” clearly demonstrate that such bodies are applying the standards in the DRIP to State obligations.
III. Post 2015 Development Agenda, Poverty alleviation & Sustainable Development “For indigenous peoples, secure, effective, collective ownership rights over the lands, territories, and resources they have traditionally owned or otherwise occupied and used are fundamental to economic and social development, to physical and cultural integrity, to livelihoods and sustenance. Secure rights to own and control lands, territories, and resources are also essential for the maintenance of the worldviews and spirituality of indigenous peoples in short, to their very survival as viable territorial communities. Without secure and enforceable property rights, indigenous peoples means of subsistence are permanently threatened. Loss or degradation of land and resources results in deprivation of the basics required to sustain life and to maintain an adequate standard of living. Failure to recognize and respect these rights undermines efforts to alleviate poverty and to achieve sustainable development.” [13]
One of the goals of the Post 2015 Development Agenda is to alleviate poverty, another is to support & achieve sustainable development and economic self-sufficiency for States, civil society and all peoples (including Indigenous peoples). These goals can be attained if indigenous rights to Land Territories & Resources are respected and acknowledged & Indigenous peoples are involved with, benefit from, and give their free, prior and informed consent to development on their lands, in their territories. In addition, Indigenous peoples, through their own governing mechanisms, must be able to participate meaningfully from development of their own resources. This approach has been recommended as an appropriate human rights based approach to problems arising with extractive industries and was, in fact the approach recommended in the Extractive Industry Report. [13]
U.N. Commission on Human Rights, Global Consultation on the Realization of the Right to Development as a Human Right: Report prepared by the Secretary-General pursuant to Commission on Human Rights resolution 1989/45, U.N. Doc. E/CN.4/1990/9/ Rev. 1, 26 September 1990, para. 104 found that… “The experience of indigenous peoples and development clearly demonstrated that human rights and development are inseparable, for the abuse of the rights of indigenous peoples is principally a development issue. Forced development has deprived them of their human rights, in particular the right to life and the right to their own means of subsistence, two of the most fundamental of all rights. Indigenous peoples have been, in fact, victims of development policies that deprive them of their economic base - land and resources.” [14]
Concluding Remarks: Demilitarization is still the missing link
For the world 400 + million Indigenous Peoples, ownership use & development of their traditional lands, territories & resources is the basis for their biological, political, economic, and cultural survival. In recent years States & all of Civil Society have come to realize that the issue of Indigenous land & resource rights is critically linked to the global issues of sustainable development and the right of self-determination of all peoples – those who are Indigenous & those who are not.
In many Indigenous regions of the world, militarism & military occupation of Indigenous lands & territories by State forces continues to exist. Militarism, military violence and Language pertaining to this important area of concern has been omitted from the outcome document because some States continue to believe that their military interventions and activities on Indigenous lands and in Indigenous territories will facilitate the continued taking of Indigenous resources for extractive industries & will further their military and economic agenda. History shows us this is wrong. Until this issue is addressed it is unlikely that States and Indigenous Peoples will realize the goals of global sustainable development.
The Indigenous Caucus and Experts express their profound sadness and concern with the continuing refusal of States to support demilitarization on Indigenous Lands, Territories & resources. Militarism is the complete antithesis of self-sufficiency and economic stability. If we work together t turn every instrument of war into plowshares, we can meet our goal of food security. Every dollar spent on war is one less dollar for poverty
alleviation, education, health & housing.
This matter was addressed by the Working Group on Indigenous Populations in 2006. [See A/HRC/Sub.1/58/22*, 14 August 2006.] as well as in the Report entitles State of the Worlds Indigenous Peoples, Department of Economic and Social Affairs, (DESA) ST/ESA/328, 2009.
Mililani B. Trask, Indigenous Human Rights Expert, Pacific Region
Citations
WCIP Briefing
The PASH Case (Public Access shoreline hawaii)
In early 1994 I got a call from a man named Jerry Rothstein. He wanted to talk to me about what was happening to Hawaii’s shoreline & was concerned that the public right to go to the ocean was being eradicated by the expanding development of private parties & foreign corporations who had the money to purchase shoreline land. We agreed to meet later that week on Hawaii Island. I did not know at that time that this chance meeting would lead to one of Hawaii’s most important cases, the PASH CASE.
Rothstein was already working with a group of residents, mostly environmentalists and conservationists, who were interested in going to the State legislature to get a law enacted to protect the right of Hawaii’s citizens to go to the shoreline. He himself had been told to “get off the beach” by a private property owner living in Lanikai, (Oahu) and when he resisted, had been told the police would be called to remove him. Rothstein needed Hawaiian support for his effort and was already aware that there were traditional access rights for Hawaiians but he could not find any law for non-Hawaiians. We began to meet weekly to discuss the problem and when we learned that Nansay Inc. was applying for a Shoreline Management permit for a development at the shoreline at Kohanaiki, in Kona. We decided to form PASH Public Access Shoreline Hawaii, an organization of Native Hawaiians & non-
Hawaiians working together to protect the shoreline. When Nansay applied for their Shoreline permit (SMA) with the Hawaii Planning Commission (PHC) we requested a contested case hearing but were denied. We appealed and won a landmark decision by the Supreme Court that not only protected our traditional rights but expanded public access rights for everyone.
In PASH, the Court reviewed Hawaiian tradition & customary rights and noted that Hawaii property law was not the same as western law on the US Continent. Citing Hawaiian constitutional & statutory law as well as the 1982 Kalipi case & the Pele case the Supreme Court ruled that Hawaiian custom & usage protected traditional rights of Hawaiians to gather on lands owned by private parties and that County & State agencies had an obligation to protect & preserve native Hawaiian rights when issuing an SMA.
The Courts’ ruling shocked private developers and Title companies because it limited western concepts of property law.
The Supreme Court stated…”Our examination of the relevant legal developments in Hawaiian history leads us to the conclusion that the western concept of exclusivity is not universally applicable in Hawai'i. Cf. Stevens v. City of Cannon Beach, 317 Or. 131, 143, 854 P.2d 449, 456 (1993), cert. denied, 114 S.Ct. 1332 (1994) (holding that "(w)hen plaintiffs took title to their land, they were on (constructive) notice that exclusive use ... was not part of the 'bundle of rights' that they acquired"). In other words, the issuance of a Hawaiian land patent confirmed a limited property interest as compared with typical land patents governed by western concepts of property.
Although this premise clearly conflicts with common "understandings of property" and could theoretically lead to disruption, see Kalipi, 66 Haw. at 8-9, 656 P.2d at 750, the non-confrontational aspects of traditional Hawaiian culture should minimize potential disturbances. See, e.g., supra note 22 and infra note 43. In any event, we reiterate that the State retains the ability to reconcile competing interests under article XII, section 7. ”
The decision in PASH was a huge victory for everyone in Hawaii, Hawaiians & Non-Hawaiians alike. It secured our rights to access the ocean & beaches, it affirmed our traditional rights under custom & usage and it established an important precedent that distinguished Hawaii law from western legal concepts. A few months later, Pacific Business News published an article about the concerns of Title Companies who feared that the decision undermined private property ownership and…. “opened the way for Native Hawaiians, associated activists and environmentalists to challenge land access in court and dispute land ownership as it is perceived in the Western world.” These fears were unfounded.
On January 23d,2005 Jerry Rothstein, the man we called Mr. Community, was killed, along with his wife in a head on collision in Kona. We lost a good friend who loved Hawaii and was committed to ensuring that its residents (Hawaiian & Non-Hawaiian) and our children will always be able to get to the sea. I still miss him very much.
Rothstein was already working with a group of residents, mostly environmentalists and conservationists, who were interested in going to the State legislature to get a law enacted to protect the right of Hawaii’s citizens to go to the shoreline. He himself had been told to “get off the beach” by a private property owner living in Lanikai, (Oahu) and when he resisted, had been told the police would be called to remove him. Rothstein needed Hawaiian support for his effort and was already aware that there were traditional access rights for Hawaiians but he could not find any law for non-Hawaiians. We began to meet weekly to discuss the problem and when we learned that Nansay Inc. was applying for a Shoreline Management permit for a development at the shoreline at Kohanaiki, in Kona. We decided to form PASH Public Access Shoreline Hawaii, an organization of Native Hawaiians & non-
Hawaiians working together to protect the shoreline. When Nansay applied for their Shoreline permit (SMA) with the Hawaii Planning Commission (PHC) we requested a contested case hearing but were denied. We appealed and won a landmark decision by the Supreme Court that not only protected our traditional rights but expanded public access rights for everyone.
In PASH, the Court reviewed Hawaiian tradition & customary rights and noted that Hawaii property law was not the same as western law on the US Continent. Citing Hawaiian constitutional & statutory law as well as the 1982 Kalipi case & the Pele case the Supreme Court ruled that Hawaiian custom & usage protected traditional rights of Hawaiians to gather on lands owned by private parties and that County & State agencies had an obligation to protect & preserve native Hawaiian rights when issuing an SMA.
The Courts’ ruling shocked private developers and Title companies because it limited western concepts of property law.
The Supreme Court stated…”Our examination of the relevant legal developments in Hawaiian history leads us to the conclusion that the western concept of exclusivity is not universally applicable in Hawai'i. Cf. Stevens v. City of Cannon Beach, 317 Or. 131, 143, 854 P.2d 449, 456 (1993), cert. denied, 114 S.Ct. 1332 (1994) (holding that "(w)hen plaintiffs took title to their land, they were on (constructive) notice that exclusive use ... was not part of the 'bundle of rights' that they acquired"). In other words, the issuance of a Hawaiian land patent confirmed a limited property interest as compared with typical land patents governed by western concepts of property.
Although this premise clearly conflicts with common "understandings of property" and could theoretically lead to disruption, see Kalipi, 66 Haw. at 8-9, 656 P.2d at 750, the non-confrontational aspects of traditional Hawaiian culture should minimize potential disturbances. See, e.g., supra note 22 and infra note 43. In any event, we reiterate that the State retains the ability to reconcile competing interests under article XII, section 7. ”
The decision in PASH was a huge victory for everyone in Hawaii, Hawaiians & Non-Hawaiians alike. It secured our rights to access the ocean & beaches, it affirmed our traditional rights under custom & usage and it established an important precedent that distinguished Hawaii law from western legal concepts. A few months later, Pacific Business News published an article about the concerns of Title Companies who feared that the decision undermined private property ownership and…. “opened the way for Native Hawaiians, associated activists and environmentalists to challenge land access in court and dispute land ownership as it is perceived in the Western world.” These fears were unfounded.
On January 23d,2005 Jerry Rothstein, the man we called Mr. Community, was killed, along with his wife in a head on collision in Kona. We lost a good friend who loved Hawaii and was committed to ensuring that its residents (Hawaiian & Non-Hawaiian) and our children will always be able to get to the sea. I still miss him very much.
The pele defense Case
In the early 1980s the Campbell Estate moved to develop geothermal energy on Kahauale‘a, a 25,000-acre parcel of conservation land adjacent to Volcanoes National Park and upland from Wao Kele o Puna. When lava flows overran the area, Campbell Estate and the State proposed an exchange of Kahauale‘a lands for Wao Kele o Puna and part of the Puna Forest Reserve. This shocked Hawaiians & Environmentalists because Wao Kele o Puna was designated a NARS (Natural Area Reserve) by state law – a designation reserved for pristine areas supporting unique natural resources, which were intended to be preserved in perpetuity, forever. In addition, Wao Kele was a site of great cultural importance to Hawaiians, especially those who worshipped Pele. One of the individual plaintiffs, Emmett Aluli was the cousin of my law partner, Yuklin Aluli who agreed to take the case. Other legal firms were involved including NHLC and the Native American Rights Fund. Initially, I worked on the case but when the 1,000 person march was announced in 1990, I returned to Hawaii Island to represent the Ka Lahui Kupuna Wahine who agreed to lead the march with the intent of getting arrested.
In the first round of contested case hearings, individual Pele practitioners challenged the proposal on US Constitutional grounds (Freedom of Religion). On appeal, the Hawai‘i Supreme Court, determined that there was no burden on the exercise of religion, without proof that religious ceremonies were held in the specific area of development. Although the Court ruled against the 3 individual plaintiffs (who had not actually used the land for traditional worship,) the court issued a landmark decision affirming & expanding Hawaiian rights. This occurred because evidence submitted by actual Hawaiian practitioners from Puna & elsewhere were able to document their traditional practice.
The Hawai‘i Supreme Court recognized that customary and traditional rights, which had been limited by residency within an ahupua‘a, could be exercised for subsistence, cultural, and religious purposes, on undeveloped lands beyond the boundaries of the ahupua‘a of residence where “such rights have been customarily and traditionally exercised in this manner.” On remand many Hawaiian practitioners were able to validate their subsistence, cultural, and religious practices in Wao Kele o Puna – beyond the boundaries of the ahupua‘a in which they actually resided – in accordance with ancient custom and tradition.
The decision in the Pele case greatly expanded our peoples rights to practice religion throughout the islands. In addition, the case resulted in the court recognizing that the State ceded lands are set aside, not only for public purposes but “for the betterment of conditions of Native Hawaiians.
Since the Supreme Courts ruling in the Pele case, there has not been a single instance of any Hawaiian being prevented from worshipping Pele. Today, many non-Hawaiian hula dancers come to Hawaii with their Halau to worship Pele at the Wao Kele. No one has ever tried to stop them, and this is as it should be when Hawaiian practitioners worship in the Hawaiian way with ohana pilialoha who do not have Hawaiian blood.
In the first round of contested case hearings, individual Pele practitioners challenged the proposal on US Constitutional grounds (Freedom of Religion). On appeal, the Hawai‘i Supreme Court, determined that there was no burden on the exercise of religion, without proof that religious ceremonies were held in the specific area of development. Although the Court ruled against the 3 individual plaintiffs (who had not actually used the land for traditional worship,) the court issued a landmark decision affirming & expanding Hawaiian rights. This occurred because evidence submitted by actual Hawaiian practitioners from Puna & elsewhere were able to document their traditional practice.
The Hawai‘i Supreme Court recognized that customary and traditional rights, which had been limited by residency within an ahupua‘a, could be exercised for subsistence, cultural, and religious purposes, on undeveloped lands beyond the boundaries of the ahupua‘a of residence where “such rights have been customarily and traditionally exercised in this manner.” On remand many Hawaiian practitioners were able to validate their subsistence, cultural, and religious practices in Wao Kele o Puna – beyond the boundaries of the ahupua‘a in which they actually resided – in accordance with ancient custom and tradition.
The decision in the Pele case greatly expanded our peoples rights to practice religion throughout the islands. In addition, the case resulted in the court recognizing that the State ceded lands are set aside, not only for public purposes but “for the betterment of conditions of Native Hawaiians.
Since the Supreme Courts ruling in the Pele case, there has not been a single instance of any Hawaiian being prevented from worshipping Pele. Today, many non-Hawaiian hula dancers come to Hawaii with their Halau to worship Pele at the Wao Kele. No one has ever tried to stop them, and this is as it should be when Hawaiian practitioners worship in the Hawaiian way with ohana pilialoha who do not have Hawaiian blood.
The Waiahole ditch case
The Waiahole Ditch Case came about because Native Hawaiians, led by citizen groups Hakipu`u `Ohana, Ka Lahui Hawai`i, Kahalu`u Neighborhood Board, Makawai Stream Restoration Alliance referred to collectively as the "Windward Parties” wanted to protect & to restore streams that had been diverted by Central O`ahu sugar plantations. As Hawaii changed, the large landowners continued the practice or diverting stream water to facilitate agricultural & commercial development of their lands.
What prompted the case was O`ahu Sugar's 1993 announcement that they were going to close the ditch and transfer the water for private development.
This sparked a monumental legal battle over the diverted water -- in the words of the Hawai`i Supreme Court, a case of "unprecedented size, duration, and complexity." KaLahui Hawaii & the Hawaiians from Hakipu & Waiahole sought to return diverted flows to the streams in order to restore native stream life, such as `o`opu, `opae and hihiwai; protect traditional and customary Native Hawaiian practices. In the initial Contested Case process, the State Water Commission sided with the large developers. Ka LaHui & others appealed the Commissions determination and after lengthily litigation won a resounding victory.
As a result of the litigation, Hawaii’s Public Trust Doctrine was re-defined. The Supreme Court ruled that the public trust doctrine when applied to the States fresh water streams included… "the right of the people to have the waters protected for their use [which] demands adequate provision for traditional and customary Hawaiian rights, wildlife, maintenance of ecological balance and scenic beauty, and the preservation and enhancement of the waters . . ."
Today, the Public Trust Doctrine protects in stream flow and all cultural practices relating to stream life forms & fresh water, including kalo cultivation & fishpond & aquaculture practices. This is only 1 instance of Hawaiians protecting & expanding public rights to common natural resources.
What prompted the case was O`ahu Sugar's 1993 announcement that they were going to close the ditch and transfer the water for private development.
This sparked a monumental legal battle over the diverted water -- in the words of the Hawai`i Supreme Court, a case of "unprecedented size, duration, and complexity." KaLahui Hawaii & the Hawaiians from Hakipu & Waiahole sought to return diverted flows to the streams in order to restore native stream life, such as `o`opu, `opae and hihiwai; protect traditional and customary Native Hawaiian practices. In the initial Contested Case process, the State Water Commission sided with the large developers. Ka LaHui & others appealed the Commissions determination and after lengthily litigation won a resounding victory.
As a result of the litigation, Hawaii’s Public Trust Doctrine was re-defined. The Supreme Court ruled that the public trust doctrine when applied to the States fresh water streams included… "the right of the people to have the waters protected for their use [which] demands adequate provision for traditional and customary Hawaiian rights, wildlife, maintenance of ecological balance and scenic beauty, and the preservation and enhancement of the waters . . ."
Today, the Public Trust Doctrine protects in stream flow and all cultural practices relating to stream life forms & fresh water, including kalo cultivation & fishpond & aquaculture practices. This is only 1 instance of Hawaiians protecting & expanding public rights to common natural resources.
Follow the debates on youtube! (trask, akana & Ahu isa sound off)
Mahalo
Aloha Dear Family & Friends,
As the Primary election will be here in a few days, I wanted to take this opportunity to thank each and every one of you who have supported my campaign. I have been very moved by the messages and words of encouragement, the volunteers and donations that have come in, and especially to those who have given their precious time to do the hard work--posting signs, and standing in the wind and rain to sign hold with me.
Mahalo nui loa to you all for believing in me and for having faith that we can move forward for Hawaiians and for our State in general by making OHA more accountable and effective. Although we face many challenges, we know that we can bring about positive change by making the commitment to get involved, to take a stand, and to continue to address and resolve problems facing Hawaii and our Hawaiian peoples.
My Aloha to you all.
May Akua bless you and keep you safe,
Mililani
As the Primary election will be here in a few days, I wanted to take this opportunity to thank each and every one of you who have supported my campaign. I have been very moved by the messages and words of encouragement, the volunteers and donations that have come in, and especially to those who have given their precious time to do the hard work--posting signs, and standing in the wind and rain to sign hold with me.
Mahalo nui loa to you all for believing in me and for having faith that we can move forward for Hawaiians and for our State in general by making OHA more accountable and effective. Although we face many challenges, we know that we can bring about positive change by making the commitment to get involved, to take a stand, and to continue to address and resolve problems facing Hawaii and our Hawaiian peoples.
My Aloha to you all.
May Akua bless you and keep you safe,
Mililani
#votetrask4oha
The League of women voters has a voters guide (click here)
Mililani campaigns on kauai!
civil beat Candidate Q&A - OHA At-Large Position: Mililani Trask
KA WAI OLA SURVEY-MililAni B. trAsk
Mililani testifies at doi hearing in keaukaha!
Mililani campaigns on oahu!
Mililani campaigns on maui!
Mililani testifies at dept. of interior hearing
mililani campaigns on hawaii island!
The building trades endorse mililani!
WIPCE Honors MIlilani
Download an absentee ballot to vote #TRASK4OHA:
Register to vote HERE!!
Register to vote HERE!!