December 15-17 2003
Room XV, Palais des Nations
Chairperson Willie Littlechild
The Expert Seminar opened on a bitterly cold howling-wind Geneva morning with a statement from Mr. Bertrand Ramcharan, the acting High Commissioner for Human Rights. He reminded those present that this meeting was made possible by a decision made by the Commission on Human Rights (decision 2003/117) that was then endorsed by the Economic and Social Council (decision 2003/271) that this Expert Seminar take place before the end of the International Decade of the World’s Indigenous People in 2004. Willie Littlechild was nominated as the Chair of the meeting and was accepted by all for the position. Louis Raine, a Cree Elder, said a prayer and blessing for the meeting.
Over the three days of the Seminar, there were 21 working papers presented that will all become a part of official United Nations record. The papers are as follows:
The international character of treaties with indigenous peoples and the utilization of treaties about them,
By Mr. James W. Zion for the National Indian Youth Council and the Navajo Working Group for Human Rights
Acuerdos Constructivos, remunicipalizacion y ciudadania etnica contra el plan puebla panama. Estudio de Caso del Alto Balsas, Guerrero, Mexico.
By Marcelino Diaz de Jesus, Presidente del Consejo de Pueblos Nahuas del Alto Balsas, Guerrero, Mexico
Treaties with Native Americans: Evidence of the Legal Existence of the United States
By Ms. Roxanne Dunbar-Ortiz, Director of Indigenous World Association
Implementation of the Indigenous Peoples Rights Act (IPRA) in the Philippines: Challenges and Opportunities
By Ms. Ruth Sidchogan-Batani, Research coordinator, Tebtebba (Indigenous Peoples’ International Centre for Policy and Research)
The Greenland Home Rule Arrangement in brief
By Tove Søvndahl Pedersen, from Greenland Home Rule Government
By the International Indian Treaty Council
The Anglo-Maasai-Agreements/Treaties – a case of Historical Injustice and the Dispossession of the Maasai Natural Resources (Land), and the Legal Perspectives”
By Mr. Joseph Ole Simel, of Mainyoito Pastoralists Integrated Development Organization
Implementation Challenges for Intra-State Peace and Autonomy Agreements between Indigenous Peoples and States: The Case of the Chittagong Hill Tracts, Bangladesh
By Mr. Devasish Roy, Taungya and Hill Tracts NGO Forum Organizaions
Analysis of Principles, Processes and the Essential Elements of Modern Treaty-Making – The Canadian Experience
By the Government of Canada
Proposed Recommendations to the UN Expert Seminar on Treaties
By the Teton Sioux Nation Treaty Council and Na Koa Kailca Kalahui Hawaii
By Sharon Venne, Akaitcho Dene Treaty 8
La Autonomia del Pueblo Kuna en Panama
By Sr Atencio López Martinez, Asociacion Napguana
Algunas reflexiones y notas a propósito de algunos tratados en éste momento, no reconocidos, firmados entre potencias coloniales o Estados actuales y pueblos indígenas
By Sr Mario Ibarra, Experto independiente
Background and Recommendations
By George Wes, on behalf of the Ochapowace and Cowesses First Nations, the South East Treaty 4 Tribal Council and the Federation of Saskatchewan Indian Nations.
HR/GENEVA/TSIP/SEM/2003/BP.14 (available only in hard copy – English)
Report on the Treaty of Waitangi 1840 Between Maori and the British Crown
By Ms. Claire Charters, Victoria University of Wellington
The process of exclusion of indigenous peoples of West Papua in determining their destination About treaties, agreements and measures that are undemocratic and provocative and through which Papuans are set against each other
By Mr. Viktor Kaisiëpo, Dewan Adat Papua
Perspective on Treaties, Agreements and other Constructive Arrangements between States and Indigenous Peoples
By the Government of Canada
HR/GENEVA/TSIP/SEM/2003/BP.17 (English and French)
Role of the UN and regional intergovernmental organizations for conflict resolution in Burma between the State and indigenous peoples: The Panglong Agreement that was forgone by the State party and its consequences
By Liton Bom
Treaty rights y derecho internacional publico.Algunas consideraciones sobre la registrabilidad de los tratados entre pueblos indígenas y Estados por la Oficina de Tratados de Naciones Unidas [UNTS]
By Pablo Gutiérrez Vega, Universidad de Sevilla
Aspiring to a Treaty or Constructive Arrangement – The Experience of Aboriginal Peoples and Torres Strait Islander Peoples of Australia
By Les Malezer, Foundation for Aboriginal and Islander Action (FAIRA)
Indigenous Peoples and the United Nations Charter: De-colonization
By Ambassador Ronald Barnes, Indigenous Peoples and Nations Coalition – Alaska
And of course there is the landmark study by Mr. Miguel Alfonso Martinez, UN Special Rapporteur, entitled Study on treaties, agreements and other constructive arrangements between States and indigenous populations
The only paper that I will go ahead and summarize is the one with no link as of yet, which was presented by Wes George for the Ochapowace and Cowesses First Nations, the South East Treaty 4 Tribal Council and the Federation of Saskatchewan Indian Nations. This paper is a background paper on the status of treaty implementation in Canada, or rather the lack of implementation of treaty rights by the Canadian government. It speaks to the sacredness of treaties in that they were not only a Nation to Nation agreement at the time of their inception but also in that the treaties would last “for as long as the sun shines the grass grows and the river flows.” They express solidarity with Mr. Martinez’s Final Report as it has confirmed the position of these Nations as being denied very basic treaty rights. The paper also presents three sets of recommendations on the International, National, and Regional levels. Many of the major International recommendations were included in the draft recommendations created by the Expert Seminar.
I am sure that most of you have already read the above papers and for the papers that are in Spanish, I am sure that after the holiday they will all be translated on the DoCip website, www.docip.org. For myself, I had a bit of trouble understanding a few of the Spanish translations during this meeting and I am not sure if others felt the same in this regard. My Spanish is not so great, especially when it comes to more specialized and technical language so I don’t want to attempt to summarize the Spanish papers listed above for fear of misrepresentation.
The discussions for this Expert Seminar centered around the status of existing treaties, agreements and other constructive arrangements, analyzing difficulties in States’ full implementation, conflict resolution and prevention, and the role of effective national mechanisms to protect treaty rights. There was also a discussion about modern-day treaties, agreements and other constructive arrangements that involved issues of redress for Indigenous Peoples worldwide, the essential elements of modern-day negotiations as well as practical experiences of Indigenous Peoples. There followed talk of the UN role within implementation of treaties and agreements through UN treaty bodies and the recently created UN Treaty Registry, the Commission on Human Rights as well as aid through specialized UN agencies. There were a series of recommendations put forward by the participants of the Seminar that will be finalized in the first week of January and disseminated. The Canadian government also submitted a few pages of recommendations which they asked to be attached to the final report of the Seminar.
Among notable discussion points was the issue of whether treaties are international documents or solely a domestic issue. For the Indigenous people present, across the board it was stated that treaties were made in the spirit of an agreement from equal Nation to Nation arrangements at the time of their creation and their legal status as international bodies has not diminished in the years since their acceptance. States such as Canada, who was the only government present that actually participated in the discussions, said that treaties belong only in the domestic realm and that there are plenty of legal recourses within Canada to redress any treaty violations. There were several examples presented of how this was clearly not true in Canada as many of the above papers address the various methods in which the Canadian government is still to this day denying treaty rights across the board and further discriminating against indigenous communities. Indigenous people present all called for an international oversight body to monitor the implementation of treaties. Many were in support of the UN Treaty Registry so that Indigenous Peoples worldwide could register treaties, agreements and other arrangements with the United Nations and thus compliance could be monitored on a global scale. Many Indigenous delegates noted the severe lack of political will from governments to protect and uphold the various arrangements made between them and Indigenous Peoples; the State opposition to the international nature of these agreements along with their obstruction of the Draft Declaration are only two examples of the continued barrage to destroy Indigenous communities.
Every paper that was presented during this seminar pointed out that in Nations worldwide, Indigenous Peoples have exhausted all domestic legal avenues and their issues have yet to be resolved in a manner that upholds the rights of the Indigenous Peoples. Alaska, Mexico, Phillipines, West Papua, the Sioux Nation, Australia, New Zealand, Canada, Burma, Bangladesh, Chile and Guatemala were some of the examples of how treaties, agreements and other constructive arrangements were violating the collective rights of Indigenous Peoples. The Canadian, Guatemalan, Chilean, and Mexican governments were present but denied all of the statements made by Indigenous delegates who discussed the situation on the ground in these countries. These governments either refused to answer questions, did not answer the questions (meaning they gave some roundabout politic-beurocrat-speak, typical), or gave cockamamie reasons for how the Indigenous People were mistaken in their accounts.
The issue of modern-day treaties was wholly supported by governments, especially Canada, as they claimed this was the best way for land issues and other treaty rights to be resolved for Indigenous communities once and for all. Indigenous delegates saw this new concept of ‘modern treaty’ as an attempt to further domesticate already existing arrangements and also to dissolve so-called ‘old treaties.’ As it seemed that most Indigenous People worldwide did not have a lot of trust and faith in the word of Nations, they would be hesitant to enter into new treaties and arrangements as still today valid arrangements are being sidestepped and indigenous peoples rights violated.
There was an issue that arose between the Asian Indigenous Peoples present and Special Rapporteur Martinez. In his Final Report he notes that in some cases in Asia and Africa, many groups that are claiming Indigenous Peoples status are not in fact indigenous by definition but are instead minorities. The Asian Indigenous people present at the Seminar greatly disagreed with these statements by Mr. Martinez and there was some heated discussion back and forth about this. Unfortunately, it was not resolved other than Mr. Martinez stating that he was sticking by his original position and for the most part those voices of dissent in Room 15 were not a majority.
Another impassioned discussion broke out between the delegate from the Greenland Home Rule Government and Mr. Martinez. In his Study he stated that he did not feel the Indigenous Peoples of Greenland had the right to self-determination even though they claim that they do. He felt that under the Greenland Home Rule, although the Indigenous of Greenland have many rights and liberties not afforded to other Indigenous Peoples worldwide, they were not holding as much control as they would like to think. The delegate from Greenland was a bit upset about these statements and claimed that if Mr. Martinez spoke to Indigenous People living in Greenland they would state otherwise, to which he responded in kind that he was maintaining his original position as stated in his Final Report.
What I found very interesting was the way that Indigenous delegates were giving lists of human rights and land right violations within countries like Mexico, USA, Canada, Guatemala and others and yet when the governments would speak they would not even acknowledge that these accusations had been made. Issues of racist and assimilationist education policies, illegal seizures of land, military occupation, ‘disappeared’ people, the theft of Indigenous languages and cultures and so much more. Government delegates would give lessons in the States’ commitment to Indigenous People and note all of the things that they do to help, many of which directly conflicted with the realities posed by Indigenous participants. As this was my 8th meeting at the UN this year, I have seen it every time but it still blows me away.
The big blow-out was on the last day of meetings. Two delegates from the USA waltzed into Room 15 about twenty minutes before the meeting was to end for lunch and put up their placard to take the floor. As the discussion was still going strong on the issue of implementation and monitoring of treaties, agreements and other constructive arrangements and there were many who wanted to take the floor before the end of the Seminar. It was 1pm and Willie Littlechild was about to adjourn the meeting for lunchtime when the USA insisted on taking the floor, much to the dismay of the interpreters who certainly did not want to work overtime into lunch. The USA government made a statement as to why they did not participate (because some of the independent experts funded by the UN were of non-federally recognized tribes), the voiced their opposition to any international body that would monitor treaties as there are plenty of legal avenues in the USA (nevermind the fact that had they been present two days earlier to hear the situation of the Lakota peoples exhaustion of all domestic legal avenues to no avail…) and Native people do not need to look internationally for help, plus the USA government is against any discussion based around what they called the flawed foundation of Mr. Martinez’s Treaty Study. It took them 15 minutes to read their whole statement, much to the disappointment of the interpreters, and then left the meeting directly after. It was pretty embarrassing actually, a man in a suit coming into a meeting to throw a temper tantrum for his government. My American passport was burning a hole through my bag.
The result of the Expert Seminar was a series of solid recommendations that will be finalized and presented to the Commission on Human Rights in 2004. Because the recommendations display the bulk of the meeting, I have typed these up for you all to see. Please note that the recommendations are still only in a draft phase and will be finalized within the first two weeks of January. In terms of discussion about the draft recommendations, France totally disagreed with the findings and made their argument about Human Rights and Other Rights which was quite popular among the obstructionist States during the Working Group on the Draft Declaration which is a concept that is unclear and frankly ridiculous. They claim that the recommendations fall into the category of Other Rights, as do many of the basic human rights documented in the Draft Declaration. Canada also did not agree with the recommendations and has submitted their own recommendations which they asked to be attached to the final report. Several indigenous delegates asked that the international nature of treaties to be stated explicitly within the document. Charmaine White Face asked that it be included for the Commmission on Biological Diversity to study colonialism and its effect on regional and historic lifeways in regards to indigenous peoples and all living beings. These recommendations are not in the current version of the recommendations, but will be included in the final draft.
The draft recommendations to the Commission on Human Rights are a very strong statement, but when it comes to the lack of political will from obstructionist states especially, it seems likely that these States will continue to ignore recommendations and resolutions that would protect the treaty rights of Indigenous Peoples. As many of these same states do not promote human rights or children’s rights in their purest and most essential sense, violations will continue until enough pressure has been put on the States to make changes in theory and practice. The meeting was closed by Louis Raine, a prayer, the Drum and a song.