Human Rights · Riding A Dead Horse

Seventh and Eighth reports on the 10th Working Group on the Draft Declaration, September 21 & 22, 2004


The negotiations from yesterday, September 21, 2004 were on the issue of lands and territories, another problematic area of the DD for many States. Again, the Nordic Proposal (CRP1) was used as the base document to achieve consensus, even amidst protests that the basis of discussion should still be the original sub-Commission text. I will do a summary of all the discussions for the Articles 25, 26, 27, 28 and 30 as the Chair had long lists of speakers and most speakers ended up speaking on all of the articles under discussion with very similar comments. My tone in this report will be far more informal, and I hope you will give me the liberty with this one. I have been very good thus far, expressing naught but the opinions in the hall, which is very much unlike me for those who read last years reports. These discussions will not read very well in the listing style that I have been using up to this point, and it is far more my mode this way. All opinions expressed are my own unless expressly noted. The articles under discussion in their original (and correct) form are as follows and I have gone ahead and underlined the problematic areas for the Obstructer States:

A25: Indigenous peoples have the right to maintain and strengthen their distinctive spiritual and material relationship with the lands, territories, waters and coastal seas and other resources which they have traditionally owned or otherwise occupied or used, and to uphold their responsibilities to future generations in this regard.

A26: Indigenous peoples have the right to own, develop, control and use the lands and territories, including the total environment of the lands, air, waters, coastal seas, sea-ice, flora and fauna and other resources which they have traditionally owned or otherwise occupied or used. This includes the right to the full recognition of their laws, traditions and customs, land-tenure systems and institutions for the development and management of resources, and the right to effective measures by States to prevent any interference with, alienation of or encroachment upon these rights.

A27: Indigenous peoples have the right to the restitution of the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, occupied, used or damaged without their free and informed consent. Where this is not possible, they have the right to just and fair compensation. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status.

A28: Indigenous peoples have the right to the conservation, restoration and protection of the total environment and the productive capacity of their lands, territories and resources, as well as to assistance for this purpose from States and through international cooperation. Military activities shall not take place in the lands and territories of indigenous peoples, unless otherwise freely agreed upon by the peoples concerned.

States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands and territories of indigenous peoples.

States shall also take effective measures to ensure, as needed, that programmes for monitoring, maintaining and restoring the health of indigenous peoples, as developed and implemented by the peoples affected by such materials, are duly implemented.

A30: Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands, territories and other resources, including the right to require that States obtain their free and informed consent prior to the approval of any project affecting their lands, territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. Pursuant to agreement with the indigenous peoples concerned, just and fair compensation shall be provided for any such activities and measures taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

The CRP1 proposal deletes language about lands that have been traditionally owned, it would like to delete specific areas of the total environment that would be affected, it would rather provide redress than compensation for lands that have been stolen, it removes the concept of restoration of lands, among others. New Zealand did want to note when they presented the proposal that they have co-sponsored that these were not major changes and they needed to meet the complex realities of some States. New Zealand expressed concern that if the language on lands and territories remained as is, many States would be impeded from fulfilling the Declaration. (As if they were planning to follow its recommendations anyway.) New Zealand also felt that ‘traditionally owned’ was too ambiguous a concept to be included in the Declaration and that this airy fairy term must be further qualified. (I am sure that to all of the indigenous peoples of the world, ‘traditionally owned’ is far from ambiguous and maybe if the governments cared to consult with indigenous peoples the term would seem clearer?)

Needless to say that every indigenous group that spoke yesterday was in favour of the original sub-Commission text and many Latin American indigenous groups noted the Awas Tigni case in the OAS that granted traditional land rights to the indigenous peoples of Nicaragua. It was also noted that there are many places where indigenous peoples do not have any sort of treaty or agreement within the false border of the country that they now are within, and for them it is vital that rights to their traditional lands be recognized. Indigenous people discussed their very special connection to the land for spiritual practices and there were some incredibly moving statements made to outline what it means for one’s spirituality to be linked not only with the land, but in appreciation and harmony with all living beings. Many groups also pointed out that ILO 169 utilizes the terms ‘traditionally owned’ among many of the other ‘problematic’ vocabulary that the obstructionist States have on their list. Mexico and Guatemala spoke in support of the original text (bless them, Creator) and Brasil made a proposal to substitute ‘traditional lands’ instead of ‘traditionally owned.’

The issue of redress versus compensation and restoration was heavy also, as the said Obstructionist States wanted to make clear that there was no way indigenous peoples could ever ever ever get the lands back that were illegally stolen. They prefer the term ‘redress’ because in that way they have control over deciding how they will deal with the situation (and choose to not deal with it as the case most certainly will be). As always, the issue of free, prior and informed consent is very problematic for certain States and they feel that the current language would impede their rights to pillage the land as they have been for oh, hundreds of years by now. Furthermore, it was noted that the language of compensation is in many CERD resolutions and several indigenous delegates encouraged the States to revisit these documents.

The USA has a problem with the language of ‘total environment’ (honestly, what don’t they have a problem with?) and asked that this language be deleted from the text. In response, it was noted by indigenous colleagues that the total environment encompasses every living, breathing, existing being within a given territory. It includes the air, the land, what is underground, what lives above ground, the trees, the manner in which it is all put together. They pointed out that all of this, in its natural form, has a balance and that human beings are only a very small part of this whole tapestry. That to upset one aspect is to overthrow the whole balance, and indigenous peoples already have the traditional knowledge to live in balance with all the beings, within the total environment. ICC stated that no other peoples in the world have demonstrated such a profound spiritual, cultural and social connection to the land, to specific lands, and for some reason, the indigenous of the world have to fight the hardest for their rights to be recognized in this regard. There was no response from the USA except for something of a blank stare.

The principles outlined in Mme. Daes report were also invoked several times during the discussions. AIR Trust noted that in Article 28 amendments of CRP1 the drafters were trying to sneak in third party rights again, which she noted was problematic and contradictory.

If you will note above, there is a provision in A28 that protects from dumping of toxic wastes on indigenous territories, and the USA found this to be problematic and proposed new language as many groups, for economic reasons, choose to have these wastes dumped on their lands and this should be accurately reflected in the Declaration. Can you imagine! Personally, I could simply not believe that she said that, and there was a notable ripple of disgust that went through the room after that one. Vicky Tauli-Corpuz addressed that statement by calling the that type of attitude ‘environmental apartheid’, and further noted that it is because so many indigenous people are suffering from such high levels of poverty that it would even occur to them to do that; no one wants to live with toxic wastes being dumped or transported through their lands. It would be exactly the opposite, and so the choice that the USA delegate talked about is not really much of a choice when it comes down to the reality of it.

That was a bare bones summary of the discussions that took place yesterday. As for today, there were informal/informal discussions on the issue of self-determination and all of the articles associated with that right. Basically, and thanks to Willie I now understand this. The sessions up until today had been informal, but they go on the record; the informal/informal debates do not go on the record at all and are merely to assess positions and talk frankly about the issues. Before you get all excited that I will go into another one of my very detailed summaries about these informal/informal discussions, I will tell you that most of the talking was on more language proposals as well as the rehashing of positions that have already been noted from all sides many times over on the issue of self-determination. There were something like 6 or so proposals on the table regarding A3 alone, and people would take one word from this proposal and a few from that other proposal, it was a ‘hurricane of words’ as Alberto from IITC very succinctly put it. I will email when there is a concrete proposal that will be under discussion as, right now, it is simply too confusing and the negotiations far too technical to get into the details.

But, do allow me to make a few comments on the process itself. The informal/informal discussions had a different feel as everyone was being called by their first names, for the most part, and even the Chair was being called Luis. People were joking around and there was far more laughter and a sort of good-natured understanding that was in the room than I had ever felt before. That is, except for the USA and Australia who made their usual inflammatory and arrogant outbursts in the room. For those who think that these Obstructer delegations are simply pure evil and must be destroyed for what they are doing, for those who wonder how they sleep at night: well, I would like to point out two observations that I have made in the last few days that make me pray even harder for them. Firstly, the USA delegate who says the most outrageous things, well she has been stuttering a lot these days. Now I have heard her speak for 2 years at these meetings and I have never heard her stutter before, but this meeting, really it’s very bad (think: Porky Pig) and sometimes she has to start her sentence over again, or there is a very long pause as she struggles to get the horrid words out of her mouth. Secondly, it appears that Wayne Lord (from the Canadian delegation) has had a stroke, and he can’t really move his right arm anymore, and the same side of his face is also affected. For those who think that they are not affected by what they are doing, I would sincerely beg to differ, as in my view, these problems are directly related to their destructive behaviour and disregard for the rights of indigenous peoples. Grampa Tony always said that these things would start to happen if they didn’t ‘Wake up!’ and I can think of very little that he wasn’t right about.

Tomorrow, the hurricane of words will continue on the land rights issue, and I will work harder to follow what is going on, but if all else fails, you will have a far more entertaining summary of the events and discussions. Thank you for the liberty of finally using my own voice in these two weeks, it felt so much better to me this way! I hope this finds you all well.




This site uses Akismet to reduce spam. Learn how your comment data is processed.