Human Rights · Riding A Dead Horse

13th Report on the 10th Working Group on the Draft Declaration, November 30, 2004

Greetings,

Before I begin I would just like to note that in the 12th report when I listed those who are participating in the hunger strike and spiritual fast, I had erroneously listed Aucan Huillecaman as one of the fasters and would like to amend that statement to let you know that he is not among the group in the hunger strike. For those new to the list, all opinions within this report are my own and do not reflect on my sponsors LIDLIP and IWA, unless expressly noted.

Today’s meeting continued with yesterday’s discussion on the articles about lands and territories and the morning session was devoted to these issues. Andrea Carmen from IITC made a general comment this morning regarding the hunger strike and informed the WGDD that there had been over a hundred messages of solidarity from indigenous peoples and allies who were in solidarity with the spiritual fast. (As I write this there are over 250.) Mr. Chavez interrupted her and testily stated that he was trying to foster a climate of understanding within the room, he had opened the discussion only for issues related to lands and territories and it was an inappropriate time for Ms. Carmen to make her statement about the hunger strike. Willie Littlechild took the floor on Article 26 in support of the ILRC proposal from yesterday, but also noted that an action like a spiritual fast is in fact directly related to lands and territories in terms of indigenous spirituality and thus Ms. Carmen’s comments were in fact relevant to the discussion at hand. As for the final statements on Article 26, France has the insane belief that there will be consensus on the issues of self-determination and lands and territories by Friday and gave a very lengthy statement extolling their support of collective rights, human rights for indigenous peoples, as well as France’s commitment to indigenous peoples and their rights to land. I know, our time in The Twilight Zone is far from over. There were a few more interventions from indigenous organizations that were split directly down the middle between those who supported the Sub-Commission text as it stands and those who were willing to make concessions to various proposals that are on the table for Article 26.

After all of those on the list for Article 26 had spoken, Mr. Chavez stated that he would be giving only 40 minutes for discussion on each of Article 27, 28, and 30 (don’t worry, I’ll explain about Article 29 later) and that each speaker would be given 3 minutes to present their interventions. Article 27 deals with the right of indigenous peoples to restitution of lands as well as redress and compensation when restitution is no longer possible. Of course, in the government proposals the text is butchered to remove the right to just and fair compensation and instead would like the text to focus on mechanisms and procedures that States would make available to indigenous peoples to pursue claims. It was noted by Hector Huerta that the issue related to this article had nothing to do with mechanisms and procedures, but a straightforward right to compensation and redress in relation to lands that had been stolen. Dalee Sambo stated that States are very much involved in protecting their own territorial integrity, but are not willing to afford this equal right to indigenous peoples. Willie pointed out that two key points of the article relating to ‘free and informed consent’ as well as the term ‘territories’ were being deleted and thus the amendments in CRP4 could not be supported. CISA, The Crimean Tartars, AFN, and IPACC supported the Sub-Commission text as it stands. The USA, friend to the world’s indigenous peoples, stated that they had many more problems with the text than they had mentioned in the past and they wanted to make clear that they could not support restitution of lands, redress or compensation. But they were more than happy to bestow the right of a process for indigenous peoples to pursue claims, if they wish. They decided not to go into the other problems they have with the text, but we all know that what they are really saying is that there is no way they will accept that indigenous peoples have a right to lands that belong to them in any way, shape or form. Full stop. This would be a theme of the day, sadly.

Article 28 was tabled and there was a bit of a tiff between the Chair and two indigenous delegates who were not given the floor on item 27 so mentioned their comments in their interventions on Article 28. Mr. Chakma from AITPN expressed support for the CRP text and pointed out that up until that point there were only the voices of indigenous peoples on these issues of land rights, and very few governments presenting their views. Mr. Chavez concurred and said that this was not a constructive dialogue and in fact not a dialogue at all. Without a constructive dialogue there would be no way to have the Declaration adopted by the end of the week and he asked both indigenous peoples and government delegates to think about this. (Oh, there is just so much that I could say in response to that snippy comment but I will exercise self-restraint.)

Article 28 deals with the protection of the total environment, restoration of lands, militarization of indigenous territories, the problem of toxic waste dumping as well as the right of indigenous peoples to effective health care from the States in which they reside. The Saami Council and Tebtebba supported both the CRP4 texts as well as their proposed CRP5. The Asian Caucus found the CRP4 amendments inappropriate especially in considering the issue of militarization within indigenous territories, which is a huge problem in Asia. Eduardo Nieva spoke in support of the inclusion of the word ‘restoration’ which is proposed to be deleted by the States. Roxanne Dunbar-Ortiz of IWA called the attention of the WGDD to the sense that what was being drafted was in fact a Draft Declaration on the Rights of States, and that the butchering of land rights in these amendments was unacceptable. Roxanne also aligned with Willie in stating that the hunger strike is very much related to the issues of indigenous peoples, land rights and the link to their distinct spiritualities. ICC called for the inclusion of the words ‘total environment’ which governments have wanted to delete because they claim to not understand what this concept means (nevermind that countless indigenous delegates have very articulately detailed this concept many times over). The USA had another proposal for text that would further amend (slay) this article on land rights and again they made their stunning observation that indigenous peoples would like to have toxic wastes dumped on their lands, that militarization is really not that big a problem and in fact is for the protection of the people, and expressed their support for CRP1 if their proposal was not taken up. The USA was given over five minutes to speak (when the Chair had been violently gaveling delegates at the end of their three minutes for most of the previous speakers), and when Willie took the floor right afterwards he laughed and said, “I hope I get as much time as the US delegate!” To which even the Chair laughed and the heaviness in the room lifted, if but for a moment of relief for all of us in there. Mexico wanted to point out that not all the time militarization is a bad thing and they detailed a few situations in their country. CISA spoke in favor of the original text and stated that there was still no dialogue, only the imposition of the government desires over the will of indigenous peoples.

Article 30, regarding free, prior and informed consent as well as just and fair compensation for development and/or exploitation of indigenous territories, was then tabled for discussion. One of the amendments would like to change the obligation of States to ‘obtain’ free, prior and informed consent to ‘seek’ free, prior and informed consent. Willie noted that although parts of CRP4 could be acceptable, the language of ‘obtain’ had to remain as it is. Goddess Mililani called a Point of Order to ask why Article 29 (regarding intellectual property rights) was being skipped over as it directly related to land rights and sovereignty over natural resources. She agreed with Willie that most of CRP4 was acceptable, but ‘obtain’ had to be maintained instead of ‘seek.’ The Navajo Nation, Sovereign Union of Independent Aboriginal Nations and Peoples, IPACC, and RAIPON agreed that ‘obtain’ must be retained in the text. Ron Lameman of the Treaty 6 Confederacy and Petucche Gilbert from IWA both spoke in support of the Sub-Commission text, and Mr. Lameman as well as Tracey Whare from AIR Trust further substantiated why Article 29 should be included in this cluster of articles on land rights. Mr. Chavez in the end decided that Article 29 would be discussed on Wednesday December 1st, from 10 AM to 11 AM.

The rest of the afternoon was spent once again in the informal/informal consultations: 2-4 was spent discussing self-determination with Wayne Lord/Canada and Mililani Trask as the Chairpeople and 4-6 was spent discussing lands and territories with Brasil and Guatemala as the co-Chairs. Basically, these groups were to meet and the Chairs would put together a report to give to Mr. Chavez with details of the discussion as well as the various proposals and any points of possible consensus.

Mililani and Wayne Lord began an effort to collect fresh copies of all the proposals on the table for the articles related to self-determination, which had come from the delegations of Russia, USA, CRP1, Willie Littlechild, the ICC/Dalee Sambo/Indigenous Proposal (this is the package deal that would leave Article 3 as is), CRP5 (Saami Council and Tebtebba), as well as the original Sub-Commission text. Miliani also wanted each of these groups to determine who was in support of their proposals and include this information in the texts that they would submit. It would appear that there are a huge number of supporters of the so-called Indigenous Proposal and many delegates spoke to this. Once I have an official list I will pass this to all of you, but suffice to say that it is an overwhelming majority of indigenous organizations and governments who feel this proposal is the solution to the issue of self-determination. As these were informal/informal discussions, governments spoke in very frank and honest terms and I must say that I was quite surprised at some of what I heard.

France expressed their great fear that by granting self-determination to indigenous peoples then groups would begin to secede from States and they feel much more comfortable granting the right to self-determination within modern State boundaries. Furthermore, they wanted to note that equality is paramount in the French constitution and they wanted the USA to discuss their idea of ‘internal self-determination’. (What equality and this bogus American version of self-determination have to do with each other is so far deep in the nether regions of false logic that I will not even try to go there to understand what is meant by these comments.) France also said they did not understand how indigenous peoples could live as sovereign nations within States and that they seemed to find this whole discussion quite mind boggling. Guatemala made a brilliant statement claiming that firstly they are still in support of the original Sub-Commission text, and further noted that in the equal application of self-determination to all, if indigenous peoples wanted to secede from States then they have every right to do so. Amazing, no?

In response to France’s question about ‘internal self-determination’ the USA gave a lengthy (and irritating) discourse on this highly evolved concept that is brand new to all existing legal discourse. The USA would like everyone to know that the word ‘internal’ is not meant to diminish the sovereignty of Federally Recognized Tribes (and what of all the hundreds of other tribes that are not federally recognized, if I may be so bold to ask?), but instead gives them the right to govern all of their own affairs, blah blah blah. You’ve heard it a million times before, don’t make me repeat it. All of this was said, so the USA claimed, in the spirit of being flexible and working to build consensus (and doing a great job). They feel the need to be clear that the right to self-determination of indigenous peoples must not impede the sacred nature of The Nation-State. ILRC raised a question to the group on what exactly is the basis of the content of the right to self-determination. Mr. Coulter noted that self-determination was not only the right of indigenous peoples to participate in State processes, but that a genuine right of self-determination for indigenous peoples would be exercised by and for indigenous peoples themselves. He also noted a few legal problematic of the Indigenous Proposal as there is no agreed definition on self-determination and felt that the Indigenous Proposal opens the door for States to use watered down definitions of this concept.

As many people had been harshly criticizing the Russian proposal, the Russian delegate calmly (obviously not the same delegate as yesterday!) explained that they were not trying to limit the right of self-determination, but were merely proposing a mechanism for the effective implementation of that right. They were further trying to clarify how the right of self-determination would be exercised.

Maivan from AILA took the floor to comment on France’s statements regarding self-determination of indigenous peoples within States. To me, this was one of the most brilliant moments of the day as she invoked two great French thinkers, Foucault and Derrida who had problematized the concept of being simultaneously within and without, and how life is consistently a paradox. In light of these French thinkers, she noted that it was not so outrageous to think about indigenous peoples exercising self-determination within the boundaries of a State. She also used a very lucid example pointing out that a declaration say, for the rights of women in the workplace, how ludicrous it would be if the document was acceptable only if it didn’t impede the sensibilities of men. Mililani also noted the 1975 Helsinki Final Act (please correct me if this is not the correct title, I’m an anthropologist, not a lawyer!) which was signed by France has clear ideas of self-determination which relate to the current discussions.

Mexico wholeheartedly supported the Indigenous Proposal and wanted to find out if there was a way to include the explanatory note prepared by Dalee within the text of the Declaration itself.

Australia wanted to explore further Mr. Coulter’s idea of an indigenous self-determination that would be distinct from other definitions of the term. Australia pointed out that the issue of territorial integrity, key to their government, was only mentioned within the USA, Russia and CRP texts, and that they could not proceed on land rights issues without a safety net for States on this issue. They feel the ramifications of self-determination for indigenous people within States are serious, the reality of which must be discussed further. (Again, Sezin seriously restraining herself from a written roaring rampage against this delegation.) In the same vein of cold-bloodedness as the Australians, the UK took the floor to discuss their very own problems with the issue of self-determination and they too would like to support further discussions on this new right of self-determination for indigenous peoples. Of course, the UK is wholeheartedly in support of their bestest friend in the whole world and their proposal for internal self-determination. Joshua Cooper very aptly summarized: “It’s NEW! It’s FRESH! It’s self-determination LITE! Just like the real thing but LESS CALORIES!” Sheeeeeee.

So after the statement of the UK the informal/informal discussion on self-determination was adjourned and the discussions on lands and territories were opened by Brasil and Guatemala. For brevity and clarity’s sake, I will say that most indigenous delegates expressed the same views that have been expressed during the September session as well as this current week. The real priceless statements during this discussion came from New Zealand and Australia and I will go into these comments in detail.

New Zealand claimed that they are STILL unclear of what ‘total environment’ means (Again I will say, do they have wax in their ears? How many times does someone need to explain it to them? Is there a child’s version that can be passed on for their awareness? Do you think it is possible for a closed heart to understand a spiritual connection to land?) Furthermore, in relation to the list of resources listed in Article 25 which includes “lands, territories, waters, coastal seas and other resources” that it is simply impossible to have a material relationship with, for example, WATER! (I am actually speechless at this one, if you can believe it.) They also wanted to point out that all sub-surface resources belong to the State and these resources are held to benefit all citizens. He went on to say that the New Zealand government has a huge problem with the issue of ‘traditionally owned territories’ because in reality all of New Zealand was traditionally and originally owned by indigenous peoples, and if the indigenous are given the rights to these traditional territories then where will all the descendents of colonizers go? This would be discrimination against the descendents of colonial settlers and is a great fear of the New Zealand government in granting land rights to aboriginal peoples.

Yes, he did in fact say this. Can you imagine? At least he was honest, and many speakers after him did in fact thank him for his frankness and candidness about the New Zealand government position.

In the same vein, Australia also seconded New Zealand’s comments about sub-surface resources belonging to the State and that this would not change, at least for the Australian government. Furthermore, Australia could not imagine the mass relocation of non-indigenous peoples if the indigenous were granted the land rights that are outlined in the Declaration. (But how about we just NOT mention the mass relocation and the mass extermination of the indigenous peoples of Australia that was quite easy for the government to institutionalize and normalize.) He went on to say that the lands and territories articles are not honest and sincere in the Sub-Commission text because they can not be complied with, and they would like to protect the world’s indigenous peoples from yet another treaty that would be an exercise in insincerity. “We must accept the circumstances we’ve inherited and move forward.” For the Australian government, it is more important to protect the lands that indigenous peoples currently own and begin to create mechanisms for redress.

At least he was honest, that’s all I can say other than the fact that I am totally disgusted by what I heard from the governments of the USA, UK, New Zealand and Australia today. Most people seem resigned to the fact that these governments say these racist and inappropriate things as if it is normal, and I will make it a point to continue to be outraged every time I hear them. I will be outraged every time because it is not normal, it is not acceptable to talk about people like this, honest or not. And I don’t care how many times I hear it, but I have the breath knocked out of me each time these statements emerge on the floor in a dark cloud of violence that bleeds the spirits of the wounded past into our present.

The USA also objected to the term ‘traditionally owned.’ The Brasilian co-chair asked the Indigenous Caucus if they could come up with some alternate language for the terms “traditionally owned.” Mexico took the floor to point out that the fear that States were expressing in terms of indigenous peoples expelling non-indigenous citizens if they were granted land rights was totally unfounded, and Mexico very humbly noted that these articles were present to protect indigenous peoples from government abuses such as what the Mexican government had been party to as well. The delegation of Brasil took the floor to make a theoretical statement about the concept of ‘tradition’ as its definition varies from culture to culture and even within languages. Brasil did address the issue of New Zealand by saying that it is possible to have a material relationship with absolutely anything, water, money, air; we can have a material relationship with anything that exists, quite simply. The Grand Council of the Cree’s legal counsel pointed out that the fears of New Zealand were ‘a red herring’ as the document under discussion is only a Declaration and there could be no possible effect likened to what the governments were imagining; the presupposition was ridiculous and obstructionist.

As for tomorrow’s meetings, the only concrete information that anyone knows is that Article 29 will be discussed from 10 AM to 11 PM and it is possible there will be more informal consultations for the rest of the day. I hope this finds you well and sending up prayers for everyone who is involved in these discussions, and especially the members of the government delegations. Please do write in with your support of the hunger strike at indigenousolidarity@yahoo.com or 00-41-22-917-0079. Until tomorrow…

In Honor of Tony Black Feather,

Sezin

Thoughts?

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