Human Rights · Riding A Dead Horse

Fifth report on the 10th Working Group on the Draft Declaration, September 17, 2004


Before I report on the discussions from the meeting on Friday I just have a few small messages. Firstly, with many apologies, I had said in several reports that the organization CAPAJ had taken a position and spoken on several issues, but actually CAPAJ is not participating this year at the WGDD. The organization is actually CISA and I will be adjusting all of the past reports to reflect that. Secondly, I have heard that these reports are being published on various websites on the internet and so would request those that are publishing them to also change all mention of CAPAJ to CISA. I would also like to know which are the websites publishing my reports, just out of curiosity! That’s a first for me and would certainly like to have the information for my own records, and many thanks to those who are getting the word out there about the WGDD processes. And finally, the IndiGeneve event this past weekend was simply a stunning piece of work and was a huge success. So many people came to listen to the impressive list of speakers and everything ran very smoothly. The event was written up in the Geneva newspaper several times with various articles focusing on the issues of different indigenous communities from around the world. It was just wonderful how much support is out there. Even a few of the government delegations showed up, namely Guatemala and the Nordic states. For those who helped and participated, many thanks to you!

And now, back to the WGDD.

Friday’s meeting was very intense as the WGDD finished up discussions on the articles that had never been discussed before and then moved onto discussing the articles concerning self-determination. The articles discussed were 37, 38, 39, 41 and 3.

A37: States shall take effective and appropriate measures, in consultation with the indigenous peoples concerned, to give full effect to the provisions of this Declaration. The rights recognized herein shall be adopted and included in national legislation in such a manner that indigenous peoples can avail themselves of such rights in practice.

*The Nordic Proposal (CRP1) has proposed to delete the last line as this is only a Declaration and thus it cannot require States to bring their legislation in line with it that is reserved solely for Conventions.

*COICA and AILA both made proposals for this article and the article will be discussed further once the proposals have been made in writing.

A38: Indigenous peoples have the right to have access to adequate financial and technical assistance, from States and through international cooperation, to pursue freely their political, economic, social, cultural and spiritual development and for the enjoyment of the rights and freedoms recognized in this Declaration.

*CRP1 proposes to delete from ‘to pursue freely’ and onwards, replacing it with text that sets the rights outlined in the Declaration within a context of all human rights instruments; also they would delete ‘adequate’ as it is up to States to determine the level of assistance to their citizens.

*IITC, CISA, Ron Barnes representing Alaskan indigenous peoples and Brooklin Rivera representing the indigenous peoples of Nicaragua made interventions to keep the text as it is, especially the term ‘adequate.’

*COICA made a new proposal for text as well as Mr. Rivera.

*It was noted that discussion for this article would have to continue once a decision was made about A3 on self-determination, and the Chair mentioned that no one in these discussions objected to the change in language at the end of the article.

A39: Indigenous peoples have the right to have access to and prompt decision through mutually acceptable and fair procedures for the resolution of conflicts and disputes with States, as well as to effective remedies for all infringements of their individual and collective rights. Such a decision shall take into consideration the customs, traditions, rules and legal systems of the indigenous peoples concerned.

*New Zealand spoke on the CRP1 amendment and noted the concern of the drafters of the proposal and other States of including third party rights in this Declaration.

*IITC, Tetuan Oyate, CISA, AIR Trust, Guatemala did not support the amendment and wanted the text as it is in the sub-Commission version.

*Tebtebba, Cordillera Peoples Alliance, Mr. Rivera, ILRC, the Navajo Nation and the Saami Council supported the CRP1 proposal as they felt it strengthened the text and that it was good to have protection from third parties as indigenous peoples.

*COICA, Russia, Canada, Australia, Mililani Trask, the Asian Caucus and AILA made new proposals for the text (but Mililani did support the CRP1 proposal also and called upon indigenous peoples to reconsider their positions as the addition of third party rights could assist in conflict resolution). Mexico would like a different term used than ‘third parties.’

*There were a few problematics in the discussion. One involved, once again, this issue of national legislation being compatible with the Declaration for any particular State to support it to which Ana Pinto from CORE Manipur replied that in many treaties such as CEDAW and others had elements that were in direct contradiction with many national legislations but that did not stop the treaties from being created (very important point to note and extremely clever of her to bring that up). Secondly, many indigenous delegates felt that adding this notion of ‘third parties’ detracts from the conflict that most indigenous peoples have directly with the State governments that rule their territories.

A41: The United Nations shall take the necessary steps to ensure the implementation of this Declaration including the creation of a body at the highest level with special competence in this field and with the direct participation of indigenous peoples. All United Nations bodies shall promote respect for and full application of the provisions of this Declaration.

*The CRP1 cuts the first sentence, adds ‘relevant’ after “All’ and adds a new paragraph that states the Permanent Forum on Indigenous Issues and States will follow-up the Declaration. When Finland introduced the text they noted it was not an amendment but an updated version.

*IITC, the Kuna, Consejo de Todo la Tierra (Chile), a Tamaynut organization, AIR Trust support the original text.

*Russia proposed to delete the article. FAIRA, South Africa, Ecuador, Mililani and Bolivia made proposals for new text. Brasil proposed to fuse articles 40 and 41. Mr. Chavez asked them to all meet and come up with one unified proposal in writing.

*The addition of the text from CRP1, as interpreted by Mr. Chavez and Willie Littlechild, could in fact allow the Permanent Forum a greater chance of true permanence in the UN system. The PF will be up for review in 2 years, and no one at this point knows if it will be successful and continue its work. Concern was expressed from indigenous delegates and governments that the PF has a mandate already and would not be able to also do the huge job of following up on the Declaration. Plus, the PF is not allowed to name countries in their mandate and thus follow-up on violations of the Declaration would be very difficult to accomplish. Willie and Mr. Magga (the Chairperson of the PF) both noted that the PF as it is right now does not have the resources to effectively follow-up on the Declaration, but that with more resources the mandate could be expanded to include this work. Many indigenous organizations did not feel that the PF was a competent enough body to conduct follow-up with the specific mandate they already carry. Vicky Tauli-Corpuz, a PF member, was disappointed at how many of the comments made seemed to diminish what the PF had done already and what it could do in the future. She did note also that the burden of follow-up should not be solely the PF and States but also the CHR and all its subsidiaries. Mr. Magga spoke in favour of the CRP1 as he felt that it would allow the resources for the PF to grow, and he also noted that the PF is the highest that indigenous peoples can go as non-State actors in the system. He also noted that follow-up should not only be allotted to the PF but to all UN bodies as they are all relevant to the issues of indigenous peoples.

A decision on Mr. Pary’s involvement in the deliberations was finally resolved and Mr. Chavez noted that his original ruling was correct and that it was legal for Mr. Pary to participate in the discussions under his new accreditation with the World Peace Bureau. Mr. Chavez also gave him the opportunity to speak on any articles he would like to as he had not been allowed to take the floor for 2 days. This was met with applause throughout Room 17, to which Mr. Chavez responded for the umpteenth time that he did not appreciate these types of manifestations during the deliberations, and asked that the delegates maintain decorum. The USA once again objected and said they will do their own consultation with the legal bureau, and also noted that they have put the World Peace Bureau on notice for accrediting Mr. Pary. When Mr. Pary took the floor as the Chair had allowed him, he gave a very strong statement which I heard from delegates really tore into the United States for their behaviour during the DD process as well as their treatment of him in the last year.

So upon completion of the above articles, an entire reading of the DD had been finally accomplished. The second reading of the DD was to begin with the discussion on self-determination and Article 3.

A3: Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

*CRP1 adds two very lengthy paragraphs to this article which in effect define self-determination and note that it can not violate the territorial integrity of a State nor political unity. Norway noted that the language they have proposed is directly taken from the Vienna Declaration and that if there were no more proposals then the WG could go ahead and adopt it right away…To which the whole room erupted in laughter!

*ICC, the Grand Council of the Crees, AILA, AFN, Tebtebba, Cordillera Peoples Alliance, Native Women’s Association of Canada, Ainu People, AMAN, JOHAR, Pacific Caucus, African Caucus, Latin American Caucus, the Arctic Caucus and a few more proposed a new preambular paragraph that would follow PP15. This new PP would be read in conjunction with A3, and addresses all the concerns of States held within CRP1, and the inclusion of this PP would allow for A3 to remain as it is. The proposal was found very intriguing by governments and was distributed in writing to the WG. It reads as follows: Encouraging harmonious and cooperative relations between states and indigenous peoples based on principles of justice, democracy, respect for human rights, non-discrimination and good faith.

*Mexico, Canada, and Brasil were very interested to explore this proposal and saw it as a very good step towards achieving consensus on the issue of self-determination. They also wanted ICC’s written comments regarding how the new text would address the issues that States have with self-determination and how to read the text in conjunction with A3.

*France still found it problematic but will consult with their capital to see what the position could be.

Two groups also presented their unified proposals on PP19 and A32. The group regarding PP19, lead by Mililani decided that they would stick with the original text as their proposal. New Zealand found this problematic, but Mililani noted that New Zealand did not come to their meeting and instead sent Denmark and Greenland, who then deferred to the indigenous delegates of the group, who then decided that they would rather just stick with the original text! A32 proposal is as follows: “Indigenous peoples have the collective right to determine their own identity, membership or citizenship in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the State in which they live.

Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures. “Ecuador was part of the group and they still have a problem with the word ‘citizenship’ in the proposal, but they agree with everything else.

The delegation of Mexico brought up the issue of the five articles that have been accepted from CRP1 with no changes, 2, 3, 7, 8, and 9 and requested that Mr. Chavez take action on adopting these articles. Mr. Chavez said that he had the feeling that there were still governments who were not ready to move forward with that so quickly, to which Mexico responded that the articles could be adopted ‘ad referendum.’ They were really very insistent with him to adopt the articles but he was equally insistent that the WG should wait. France put up their placard to speak but put it back down when Mr. Chavez maintained his decision to wait.

A woman from the organization CHIRAPAQ, a Quechua from Peru, gave a very moving statement encouraging the States to move forward with the Declaration and to adopt it by the end of the year.

That concluded the day’s sessions and I will be back again tomorrow.




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