A/HRC/51/50 spirit of partnership and mutual respect. 6 Article 37 of the Declaration must be read in conjunction with other rights set out in the Declaration, including the rights to selfdetermination, free, prior and informed consent and to lands, territories and natural resources. 6. The Declaration stresses that its recognition of the rights of indigenous peoples enhances harmonious and cooperative relations between the State and indigenous peoples and affirms that treaties, agreements and other constructive arrangements are the basis for a strengthened partnership between indigenous peoples and States. 7 Under article 37, indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such arrangements. 7. Building on those principles, the American Declaration on the Rights of Indigenous Peoples guarantees the right of indigenous peoples to the recognition and enforcement of treaties, in terms that restate article 37 of the United Nations Declaration on the Rights of Indigenous Peoples, adding that this shall be done “in accordance with their true spirit and intent in good faith”. Furthermore, it affirms that States shall give due consideration to the understanding of the indigenous peoples regarding treaties, agreements and other constructive arrangements, and contemplates the intervention of a competent body, including regional and international bodies, to resolve disputes.8 8. The process of negotiation inherent in treaty-making is the most suitable way not only of securing an effective indigenous contribution towards the eventual recognition or restitution of their rights and freedoms but also of establishing much needed practical mechanisms to facilitate the realization and implementation of their ancestral rights and those enshrined in national and international texts.9 The Supreme Court of Canada has stated that “treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty and to define Aboriginal rights guaranteed by section 35 of the Constitution Act”.10 9. The Declaration states that the rights affirmed in treaties, agreements and other constructive arrangements between States and indigenous peoples may be matters of international concern, interest, responsibility and character.11 This clearly applies to treaties and other legal instruments concluded by the European settlers and their successors with indigenous nations, which continue to be instruments with international status in the light of international law, as affirmed by the Special Rapporteur in his final report. 12 He also addressed this topic, describing the process of “‘domestication’ of the ‘indigenous question’” as “the process by which the entire problematique was removed from the sphere of international law and placed squarely under the exclusive competence of the internal jurisdiction of the non-indigenous States”. 13 10. Similarly, as noted by a former Special Rapporteur on the rights of indigenous peoples, “the doctrine of sovereignty traditionally has shielded states from scrutiny over matters that are deemed to be within the realm of their domestic concern”.14 Nevertheless, in the development of the international human rights regime since the adoption of the Charter of the United Nations, this shield has been weakened, in particular owing to the fact that indigenous claims have been put forward as collective rights.15 6 7 8 9 10 11 12 13 14 15 Ibid., twenty-fourth preambular para. Ibid., fifteenth and eighteenth preambular paras. American Declaration on the Rights of Indigenous Peoples (AG/RES.2888 (XLVI-O/16), article XXIV. E/CN.4/Sub.2/1999/20, para. 263, and A/HRC/39/62, para. 5. Supreme Court of Canada, Haida Nation v. British Columbia (Minister of Forests) [2004] SCR. 511, para. 20, see https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2189/index.do. United Nations Declaration on the Rights of Indigenous Peoples, fourteenth preambular para. E/CN.4/Sub.2/1999/20, paras. 270–272. Ibid., para. 192. S. James Anaya, “Indigenous peoples and international law issues”, in The Challenge of Non-State Actors: Proceedings of the 92nd Annual Meeting of American Society of International Law, vol. 92, (April 1998), p. 97. Ibid. 3