Human Rights · Riding A Dead Horse

sixth report on the 9th working group of the draft declaration, september 22, 2003

hello my dear relations,

i am back again after a very long day in the working group on the draft declaration. ahh, the days get longer and longer in room 16 and there is not much time left in this session for substantial work to be done. it is amazing to me that only six days have passed in the working group, yet i feel i have been listening for a year. prayers are still very much needed for this process to move forward.

this morning, there was substantial (well, in the sense that there was a lot of talking) discussion regarding article 4 of the draft declaration. article 4 states:

“Indigenous peoples have the right to maintain and strengthen their distinct political, economic, social and cultural characteristics, as well as their legal systems, while retaining their rights to participate fully, if they so choose, in the political, economic, social and cultural life of the State. ”

new zealand presented a proposal to delete ‘as well as their legal systems’ and add ‘legal’ after ‘economic’ in the above amendment. canada noted that ‘their legal systems’ is a problem for them as although they support the spirit of the article, they can not support a separate legal system for indigenous peoples (even if this system is older and wiser than their own). canada wants to eliminate all mention of ‘their own legal systems’ throughout the document. the usa also supports the spirit of the article and noted that indigenous groups in the usa that are federally recognized (key words there) have total sovereignty over their lands, etc. (yeah right! how many people in this list agree with that cockamamie statement!!!!) the united states government would like to substitute the words ‘are free to’ and ‘freedoms’ in place of ‘have the right to’ and ‘rights.’ (as you can see, this significantly changes the so-called spirit of the article which the usa was in so much support of.). russia supported the new zealand proposal and would like to further delete ‘if they so choose.’ russia added that all legal systems should be merged into one. australia expressed their support of the basic principle of the article, ALTHOUGH they have reservations about the unqualified right to a separate legal system for indigenous peoples. australia would also like to incorporate all systems into one but they categorically are against the rights of indigenous peoples to maintain their own juridical systems. the uk supported the thrust of the article, but they are not clear what rights are being granted therein, and are also against a separate legal system. guatemala, the voice of reason, asked for the opinions of indigenous peoples and thought that all articles should remain the same. guatemala asked canada and other Obstructor governments to reconsider their positions.

a link was then made to article 33 so discussion moved there. article 33 says:

“Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive juridical customs, traditions, procedures and practices, in accordance with internationally recognized human rights standards. ”

sounds simple enough, no? well, australia can not support the article the way that it is and they have a whole new article to propose. although the chair asked for people to pay close attention to these myriad proposals, there was no time taken for them to be read properly or presented in a way that was clear to those in the meeting. several governments took the floor but all discussed nothing, basically. again, there were many minutes of empty rhetoric to take up huge chunks of time. france, for example, is VERY good at this. new zealand kindly noted that the australian proposal was not clear to them and they needed it in writing in order to take a position. the uk expressed their solidarity with australia as the article as it stands makes the state responsible for some crazy reason that was not entirely clear to anyone sitting around me. canada reiterated their opposition to the idea of a separate legal system. furthermore they educated the working group on how in canada indigenous juridical systems have already been integrated into the current legal structure. ( i am sure the canadians in this list will find that a good thing to learn about their benign government.) ecuador wanted the article to remain as is.

the saami council asked the governments why indigenous legal systems were seen by them as something less than western legal models, and wanted the governments against indigenous legal systems to give examples of this less-than status. a maori representative noted that current legal systems in new zealand and australia do not take into account the customs and cultures of their aboriginal peoples; there was no equal justice meted out to indigenous peoples in these spheres. furthermore, he noted that the question was not really about legal separatism, but rather legal pluralism, and expressed his discontent that the discussion seemed to make the conclusion that indigenous juridical systems seemed to carry less weight than the western models. new zealand took the floor but spewed more empty rhetoric to refute what the maori gentleman had noted. canada took the floor to say that they do in fact recognize the legal systems of their indigenous people and in fact, distinguished colleagues, they are NOT trying to be obstructive (to which adelard and i both were chuckling….). a mapuche delegate said that the recognition of indigenous legal systems was a key right contained in this article. brasil supported the original wording of the article. aila wanted to point out that contrary to what government reps seemed to be saying, the legal systems of indigenous peoples are not stagnant and are constantly evolving. furthermore, aila noted that in the laguna pueblo community, children under the age of 18 were not allowed to join the military, but they asked where the community would be left without the right stated in article 33 as the usa has still not ratified the convention on the rights of the child.

new zealand extolled their virtues more and discussed how effective their parliament is in collectively determining laws that affect all new zealanders. norway maintained that a complete reorganization of the declaration would make it easier to read. the meeting was closed for lunch.

after lunch, the meeting started 30 minutes late, AGAIN! by my calculations, already over 4 hours have been lost from the afternoon session starting at 330pm instead of 3, and same with the morning beginning at 1015 or 1030 instead of 10. the chair apologized, but i am beginning to seriously wonder whose side he is on. a discussion began (FINALLY, jeez) about article 19, and then soon included 20 based on government comments. article 19 notes:

“Indigenous peoples have the right to participate fully, if they so choose, at all levels of decision-making in matters which may affect their rights, lives and destinies through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions. ”

and article 20 states:

“Indigenous peoples have the right to participate fully, if they so choose, through procedures determined by them, in devising legislative or administrative measures that may affect them.

States shall obtain the free and informed consent of the peoples concerned before adopting and implementing such measures. ”

australia, again, supports the spirit of the article which deals with the participation of indigenous peoples in legal systems as well as grants them control over their lives. HOWEVER, to australia the terms ‘to participate fully’ and ‘at all levels’ were problematic to them. they proposed that articles 19 and 20 be merged into one article with entirely new language which they quickly proposed.

the usa let us all know that indigenous peoples in the united states are protected under the constitution and that indigenous participation in the government is encouraged by the existing democracy. the usa would also like to substitute the word ‘freedom’ instead of ‘right,’ and would support australia’s proposal to merge the two articles.

capaj, guatemala, the intl indian treaty council, tupaj amaru, the inuit circumpolar conference, indigenous world association, johar, and the chakma peoples all supported the articles separate and as they stand. several noted that the subjects in the two articles are very different and it would weaken the declaration to merge them. the intl indian treaty council pointed out that ‘freedoms’ are very different from rights; one is free to starve to death or live under a bridge. but a right is an obligation. these are two very different concepts. i believe that one of the government proposals was to delete the term ‘free and informed consent’ from the document (like i said they read the proposals very quickly and they have not been distributed in writing) and many indigenous organizations had huge problems with this.

france said that they would like to see the proposals sticking close to the original text, and then presented a series of proposals to amend the article (to me, in very substantive ways). canada had problems with the broad and unbalanced nature of both articles and could not accept them. the uk stated their opposition to this right of ‘free and informed consent.’

the next article that was discussed was 21:

“Indigenous peoples have the right to maintain and develop their political, economic and social systems, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities. Indigenous peoples who have been deprived of their means of subsistence and development are entitled to just and fair compensation. ”

australia reiterated their support of the spirit of this article, BUT they feel that in order to minimize duplication throughout the declaration the article should simply be deleted. australia sees a practical problem for them in recognizing the above mentioned rights, and also think that just compensation should not be included in this article. they gave a list of several articles that they feel say the same thing as this one. the chair asked those who are not in favor of deletion to point out to the chair what is different about this article from the other ones.

indigenous delegates took the floor to note that the issue of just and fair compensation was only in this article; how each article had a distinct theme as did this article; and within the context of each article, sure there is similar language, but the meaning shifts from article to article and thus the article should remain in the document as it is. many noted how the political context of the article carried more weight than the actual words and nowhere else in the declaration was the right of indigenous peoples to their traditional means of subsistence granted as a right. faira pointed out that “to be secure in the enjoyment of their own means of subsistence and development…” was contained in no other articles. the assembly of first nations noted that land is equal to life for indigenous peoples, and they are unable to do maintain traditional practices of hunting, fishing, and subsistence farming as the canadian government had taken 99% of their lands; they are unable to maintain traditional subsistence in the reserves to which they have been relegated.

new zealand then refreshed an old proposal to change ‘compensation’ to ‘redress’, and change ‘just and fair’ to ‘just, fair and agreed.’ canada endorsed australia’s proposal to delete the article, even though they are in full support of the spirit contained therein. furthermore they stated that governments such as theirs can reserve the right to violate aboriginal treaty rights in regards to hunting and fishing. (YES!!! they ACTUALLY said that!!!!!)

brasil wanted the article to stay as it is. guatemala asked the Obstructor governments if they were really trying to achieve consensus or if their goal was to sabotage the entire process. (THANK YOU!!!!!) although the guatemalan government had another proposal, they said that they would not present it as already there had been too many that even they were not able to follow nor keep clear. they would go ahead with the article as it stands. the chair summed up the multiple countries who had made proposals and urged all of the government members to be conciliatory in this process and make concessions to allow the declaration to move forward.

you know, to be perfectly honest, i feel like such a bearer of bad tidings as the meeting progresses. i look back on the optimism i had when the meeting began and can hardly believe that is was only one week ago! but from talking to people who have been involved in this process since the beginning, even before the draft declaration existed at all, people say that this is the best meeting thus far. the discussions have been substantial and a few governments have significantly altered their positions over the last few years, new zealand being one of the major position-shifters. again, there are very limited governments speaking at the meetings and it is always the same ones. i am curious to know what is happening behind the scenes in terms of lobbying the silent government members of the working group and anyone who knows or is participating in that lobbying do let me know. i am just curious is all.

so, to end on a good note….today was just gorgeous and sunny outside. ah, the sun was radiant and smiled down upon all of us. this evening, storm clouds rolled in but it made all the fields and trees and countryside glow such a vibrant green. i spent the entire ride home trying to comprehend the green that emerges only when it is about to rain.

from stormy france, wincincala bids you all a good night and an incredible tomorrow.

toksa ake.



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