Human Rights · Riding A Dead Horse

4th report on the 9th working group of the draft declaration, september 18, 2003

hello friends,

i hope everyone is doing marvelously! i am back again with another report on the goings-on in room 17 during the draft declaration working group. it seems my reports will continue to truncate as the discussions continue as there is much repitition in the proceedings in terms of arguments and the like. as usual, forward at will and thanks for reading!

this morning the discussion resumed on article 13:

“Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have [reasonable] access in privacy to their religious and cultural sites; the right to the use and control of [their] ceremonial objects; and the right to the repatriation of human remains.

States shall take effective measures, in conjunction with the indigenous peoples concerned, to ensure that indigenous sacred places, including burial sites, be preserved, respected and protected.”

so just to refresh, the new zealand delegation had put forth the above additions to the text which again were being discussed in this morning’s meetings. many of the same points continued to be made in an effort to educate the various Obstructor governments on the meaning of this article to indigenous peoples, namely that indigenous spirituality is intrinsically linked to their lands and the idea of ownership is not entirely clear. the asian organization johar noted that they were fine with the article as is, but wanted to point out that after consideration, the addition of ‘their’ had taken on a more sinister meaning as it could imply protection for people who possess indigenous ceremonial items but are not of the indigenous culture. the intl indian treaty council supported this statement by johar and also noted that the addition may not be for grammatical or clarification, but rather to protect current ownership of said articles. guatamala and venezuela both supported leaving the article as it is and adopting it as such. the chair asked if any indigenous delegates wanted to include the word ‘reasonable’ and none did. he asked the governments the same question and several supported new zealand’s proposal, thus the chair asked that those against the proposal work to gain some sort of consensus with those on the other side.

the chair then moved the discussion to article 14 which states:

“Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.

States shall [or should] take effective [or reasonable] measures, [delete whenever any right of indigenous peoples may be threatened], to ensure this right is [actively] protected and also to ensure that they can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means.”

once again, when the chair asked for comments on the article as it was, no one spoke for a very long time. i mean several minutes. finally, new zealand made the above additions, deletions and word changes in a proposal that was supported by the uk. indigenous delegates (the saami council, capaj, tupaj amaru, a maori delegate, and a south american indigenous delegate) began voicing their concerns about the amendments and supported the text as it was originally created as you can clearly see the subtle watering down of the rights of indigenous peoples by the proposed changes. again, the uk gave their spiel about providing for the rights of individuals and their Human Rights and Other Rights discourse, which has now been termed Human Rights and Universal Rights. hmmmm. i can’t quite figure it out myself. there also ensued a huge debate of this issue of translation as apparently the text in the spanish version of the draft declaration is markedly different than the english version. this discussion went on for a very long time and nothing really was resolved from it. mililani trask of the permanent forum returned to the new zealand proposal and gave examples of how indigenous rights had been trampled due to the language of the state versus the indigenous language and very basic inability for the indigenous people to participate in legal proceedings. there were more comments regarding consistency of language translations with the draft declaration. then france supported the uk’s distinction between Universal Rights and Human Rights (although this was never really made clear to anybody what exactly they mean….).

so in a show of good faith and flexibility, new zealand withdrew the proposal as all of the indigenous delegates had asked. THEN, the usa (surprised, anyone?) REINTRODUCED the text proposals by new zealand as their own. hah hah. she is really not trying to make any friends, is she? the usa also expressed alignment with france’s statement. bolivia, china, and guatemala all asked for the article to be adopted as is, and an alaskan delegate from the indigenous world assoc noted that all rights expressed in the original article are already granted under various treaty bodies of the united nations. australia expressed their support of the new american proposal.

mr. ole-henrik magga who is a member of the saami council as well as the chairperson of the permanent forum on indigenous peoples took the floor and gave a brief statement. he made an urgent appeal for the adoption of the draft declaration and stated that even though the draft declaration is not legally binding, ‘it is a guiding light on a path with many shadows.’ he also noted that it has been 80 years since the haudenosaunee chief came to the leage of nations to discuss the situation in his home and started the whole movement of human rights for indigenous peoples. he closed by saying, ‘may the good spirits of our foremothers and forefathers guide you all.’ *on a personal note, he agreed two days ago to support my ngo, and was very excited about the project. yay!*

the meeting was closed for lunch.

when we returned to room 17 the discussion on self-determination began. there are two proposals on the table for this topic. there is the nordic proposal which is comprised of several parts. it is fairly technical so i will just go thru the proposal as we discuss it, okay? one of the proposals is a cluster of articles relating to self-determination that the nordic countries would like to see reorganized in the draft declaration and all put in somewhat of the same place. these articles are 3, 4, 19, 20, 21, 23, 30, 33, and 36 to be read in context with ammended pre-ambular paragraph 15. you can find the entire draft declaration at the website, and just do a search for the draft declaration on indigenous peoples. the above cluster of articles had been up for debate and the nordic countries wanted to remove article 36, but after a long discussion they acceeded to keep it in the cluster.

okay, now this part was so highly technical in terms of the discussion that i will do my best to summarize the major points as i understood them. the nordic proposal preambular paragraph 15 (pp15) would have it state:

“Bearing in mind that nothing in this Declaration may be used to deny any peoples their right of self-determination, [and further emphasising that nothing in this Declaration shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples, and thus possessed of a government representing the peoples belonging to the territory without distinction of any kind.] ”

now, on first glance it may not seem like a big deal. but what the amendment is saying is that the draft declaration can not be used to repatriate indigenous lands or basically do anything that would disturb the so-called ‘territorial integrity’ of any state. thus, the issue of self-determination becomes a moot point as indigenous peoples would not have the right vis a vis the declaration to declare themselves an independent nation from whatever state they may exist within.

the american indian law alliance (aila) had a few proposals for pp 14 and 15 which go:.

“Acknowledging that the Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights affirm the fundamental importance of the right of self-determination of all peoples, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development [and that this right applies equally to indigenous peoples],

Bearing in mind that nothing in this Declaration may be used to deny any peoples their right of self-determination [excersised in conformity with principles of international law],”

a delegate of the grand council of the cree gave a statement detailing the varied problems with the nordic proposal as it invokes this idea of ‘territorial integrity of the state’ that ultimately would negatively impact the rights of indigenous peoples in that states could decide to not repatriate lands and be protected under the declaration. the cree delegate detailed the aila proposal and stated that it would offer a broader protection of indigenous peoples under existing international law and standards which does not support ‘territorial integrity’ as a right that supersedes other rights. again, it was a highly technical discussion but this was the gist that i got from it.

china and guatemala were examples of two governments in support of the original text. canada took the floor and stated their committment to the self-determination of indigenous peoples, BUT the nordic proposal is valid and needs much more discussion. so this discussion of ‘territorial integrity’ and legal ramifications continued for a very long time and some highly technical legalese was invoked both for the nordic proposal and also against it. there did seem to be a few indigenous orgs that supported the nordic proposal, although a few that had originally supported it decided that the aila proposal was better and essentially switched sides. mililani trask (who was one of the ex-supporters of the nordic proposal) made the very good point that this issue of ‘territorial integrity’ is not so much an issue for the nordic countries, but in terms of the usa, australia and others it is a huge issue. mililani further noted that the language of the nordic proposal had come from the vienna declaration but it has been significantly altered, deletions have been made, and language moved around, which changes the spirit in many ways. mililani made a proposal to find a way to harmonize all of the various proposals. the inuit circumpolar conference also said that last year they welcomed the nordic proposal, but have significant doubts about it now. they would rather have the text as it is, and elaborated on mililani’s idea of harmonizing by suggesting a group of indigenous delegates meeting with government delegates to work out how to ‘bridge the gap between both,’ as norway had stated. new zealand was the last to speak and they basically outlined all of the fears of states in adopting the preambular article as it is, the main one being that self-determination may allow for the disintegration of ‘territorial integrity.’ (isn’t that the point for indigenous peoples? at least he admitted it.)

so, again, nothing decided, nothing changed. more proposals on the table for discussion, the Obstructors still hard at work with their mission from the devil. hmmmm. on the good side of today’s meetings, i managed to garner even MORE support for my ngo and talked with some incredible people. just incredible. i feel so blessed to be able to attend these meetings and be in contact with such magic. i feel very energized by all the people who are excited about my work and i have been getting some excellent suggestions from different indigenous people on how to organize my ngo, and these consultations will make such a difference in the future of the ngo. my hopes and prayers are with you.

until tomorrow, this is wincincala saying au revoir.

toksa ake.



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