Editors --- "Report of the Working Group Regarding Indigenous Issues - Digest" [1998] AUIndigLawRpr 11; (1998) 3(1) Australian Indigenous Law Reporter 129

United Nations Commission on Human Rights
Report of the Working Group Regarding Indigenous Issues

At its fifty-first session in March 1995, the UN Commission on Human Rights decided to establish an open-ended inter-sessional working group with the purpose of elaborating a draft declaration, considering the draft submitted to it by the Sub-Commission on Prevention of Discrimination and Protection of Minorities entitled "United Nations Draft Declaration on the Rights of Indigenous Peoples" (Commission on Human Rights resolution 1995/32). A first session of the Commission on Human Rights Working Group was held in Geneva during the period 20 November-1 December 1995. The report of the session is reproduced in (1996) 1(3) AILR 483, 483-495. A second session of the Working Group was held 21 October-1 November 1996.

A third session of the Commission on Human Rights Working Group was held 27 October-7 November 1997. The session saw a brief general debate, discussion and adoption by consensus of articles 43 and 5 of the Draft Declaration, an extensive informal debate on article 3, and discussion of the principles underlying articles 15, 16, 17, 18, 14, 44 and 45. The main body of the report of the session is reproduced below.

General Debate

19. The observer for the Sub-Commission On Prevention of Discrimination and Protection of Minorities listed the reference that have to be taken into account in the drafting of the declaration. They are inter alia the Charter of the United Nations; all the juridical instruments in the field of human rights that the United Nations and its specialised agencies have drafted an adopted; every pertinent provision in international humanitarian law; the paragraphs relating to Indigenous Peoples' issues in the Rio and Vienna Declarations; declarations of the indigenous peoples themselves as well as relevant domestic law. Also, all the most recent trends in international law have to be taken into account. Considering that all these aspects have been taken into account and that the main objective of the declaration is to ensure the physical and cultural survival of indigenous Peoples, it would be advisable that the declaration be adopted during this session.

20. The observer for the Movimiento Indio Tupaj Amaru highlighted the risk represented by prolonging the discussions for such a long time. He stressed the need for indigenous organisations to be put on an equal footing with Governments in the drafting of the declaration in order to avoid their being excluded from the process. Such a declaration should also be conceived in a dynamic way, thus reflecting all the changes that characterise today's world, both in the economic and political sector. He stated that the static position of some Governments, represents a risk for the development of such an important tool, whose provisions should depend on a democratic vote instead of consensus. The representative of Movimiento Indio Tupaj Amaru also submitted some proposals to be included in the declaration.

21. The observer for the Cordillera Peoples Alliance stated that the draft declaration constituted a minimum standard for the protection of the rights of indigenous peoples and called upon the working group to adopt the text as it stood. She also expressed some concerns regarding the participation of indigenous peoples in the forum and raised the issue of the accreditation which has turned into a real obstacle for many Asian organisations.

22. The observer for the Comisión Jurídica para el Autodesarrollo de los Pueblos Originarios Andinos - CAPAJ, highlighted the seriousness of the situation that many indigenous peoples face all over the world and, consequently, the need for the declaration to be adopted in its present form as soon as possible. She considered adoption a matter of urgency. The declaration, which already embodies all the expectations and hopes of indigenous peoples, will thus constitute the right international juridical framework for the fundamental rights of indigenous peoples to be finally acknowledged and respected.

23. The observer for the Consejo de Todas las Tierras, stressed the urgency of adopting the declaration in order to protect indigenous peoples' rights. He added that, although the declaration was to be the main achievement of the programme of the Decade, the draft in still under discussion and expressed his concerns about this delay. Also, he noted with disappointment that article 3 -- a cornerstone in indigenous rights -- was not the first article to be discussed. Nonetheless, he reiterated the importance of the discussions that should be open and explorative and stated that the debate should be seen as a first rather than a final step towards the protection of indigenous peoples' rights.

24. The observer for the Foundation of Aboriginal and Islander Research Action in a joint statement with all indigenous organisations from Australia stressed the need for indigenous peoples to participate as equal partners in all aspects of the drafting of the declaration. He reiterated that the most fundamental principle underpinning the entire declaration is the right of self-determination and stated that all other provisions of the declaration will have to rest on it. He considered the declaration as the floor and not the ceiling of indigenous peoples' aspirations and entitlements and declared that the integrity of the document has to be defended. He further recalled the General Recommendation adopted by the Committee on the Elimination of Racial Discrimination on 18 August 1997, which confirmed that no decisions relating to indigenous peoples' rights and interests can be taken without their informed consent, and called upon States parties to recognise and protect their rights to own, develop, control and use their communal lands, territories and resources. He finally welcomed last year's statement by Canada on article 3 and encouraged all Governments to engage in dialogue with indigenous peoples.

25. The observer for the International Indian Treaty Council stated that the draft was the minimum standard to promote and protect the rights of indigenous peoples and urged all Governments to adopt it without amendments. This applies in particular to the concept of "peoples" as expressed in article 3 of the draft.

26. The observer for the Assembly of First Nations reiterated the importance of the right to self-determination and the need to facilitate its implementation. He also stated that the draft declaration constituted a minimum standard for the promotion and protection of the rights of indigenous peoples. Finally, he acknowledged the progress achieved with the Government of Canada, especially its recognition that the indigenous peoples of Canada have a right to self-determination, and encouraged all Governments and indigenous peoples to engage in similar fruitful dialogues.

27. The observer for the Fédération des Organisations Amérindiennes de Guyane reiterated the importance of the right to self-determination. He stated that cultural diversity should not be seen as a negative element but as an opportunity to give indigenous peoples a chance to play an active role. He called upon all Governments, France in particular, to engage in dialogue with indigenous peoples all over the world and to adopt the draft in its entirity.

28. The observer for the Delegados Indigenas de Sur- y Centro-América in a joint statement expressed disappointment about the decision to postpone the discussion on article 3, a cornerstone of the draft declaration. The implementation of the fundamental principles included in all United Nations instruments, like peace and development, depend on the acknowledgment of the right to self-determination which, consequently, should have been considered as a priority.

29. The observer for the Association Nouvelle pour la Culture et les Arts Populaires, stated that although the General Assembly had presented the draft declaration as a further step in the acknowledgment and protection of the rights of indigenous peoples, the draft declaration can only represent minimum universal standards for the rights of indigenous peoples and should therefore not be weakened. Any attempt to alter this draft declaration would contradict the principles on human rights as recognised by the United Nations in all its instruments. The observer further brought to the attention of the working group several recent meetings: the Second Meeting for Humanity (held in Madrid, Spain in July 1997); the First Amazigh World Congress (held in Tafira-Las Palmas, Islas Canarias, in August 1997); and the Twelfth World Congress of Lawyers (held in Meknas, Morocco in September 1997), at which 358 signatures were collected in support of a petition for the adoption of the declaration on the rights of indigenous peoples before the end of 1997. He also provided the working group with the petition.

30. The observer for the L'auravetl'an Foundation reiterated that the draft declaration constituted a minimum standard for the protection of the rights of indigenous peoples and called upon the working group to adopt the text without changes.

31. The observer for the International Working Group on Indigenous Affairs also supported adoption of the text as it stood. He further expressed his gratitude to the Governments of Denmark and Fiji for their support for the cause of indigenous peoples.

32. The observer for Indigenous Initiative for Peace further reiterated the importance of adopting the draft without changes. He also affirmed that the right of self-determination as expressed in article 3 and as reflected in every other provision of the declaration was fundamental.

33. The observer of the Na Koa Ikaika O Ka Lahui Hawaii stated that Indigenous Hawaiians continued to seek changes in the United Nations process for indigenous participation in the inter-sessional working group which are inclusive in order to ensure that those peoples most affected can be afforded every opportunity to express, defend and attain the full measures of political, civil, social, cultural and economic rights. She also expressed the view that the draft declaration should be considered as an entire document and should therefore be adopted as such, especially as far as the notion of collective rights is concerned. Finally, she expressed disappointment at the decision of not debating article 3 first and stated that indigenous peoples and nations cannot come to a consensus on the provisions of the declaration unless consensus is first reached on this critical issue.

34. The observer for the Comisión Internacional de Derechos de los Pueblos Indigenas de Sud América and the observer for the Association Internationale des Educateurs pour la Paix, stressed the importance of the right to self-determination which was considered as a principle which cannot be divorced from the rest of the provisions of the draft declaration.

35. The observer for the Te Whanau Rongomaiwahine Trust Inc also highlighted the importance of the right to self-determination. She further stressed the need for the declaration to be adopted in its present form as soon as possible and considered adoption a matter of urgency. She finally expressed the hope that the declaration be adopted before the end of the Decade on indigenous peoples.

36. The representative of China expressed the view that it is fundamental to define the term "indigenous people" and provide clearly for the scope of application of the draft declaration. He said that the declaration has often been portrayed as the first of a series of instruments in the protection of indigenous peoples' rights. It is therefore even more important to reach a clear understanding of the group of people the declaration will apply to. The representative stated that, in arriving at a definition of indigenous people, the following factors should be considered: (1) The issue of indigenous people emerged under specific historic circumstances. It is mainly the results of the colonial policies pursued by the European countries in other regions of the world, particularly in the Americas and Oceania. (2) Before the arrival of the colonialists or foreign dominators, the indigenous people has lived for generations in certain countries or geographical regions and has wholly or partly preserved their own social, economic, cultural and political characteristics. (3) Indigenous people must not only identify themselves as such, but must also be recognised by the government and people of the countries in which they reside. With regard to the issue of self-identification, the Chinese delegation stated that self-identification should be exercised through certain legal procedures in the context of national legislation.

37. During the third formal meeting of the Working Group, which took place on 4 November 1997, the High Commissioner for Human Rights, Ms. Mary Robinson, addressed the working group. She said she was happy to address the Working Group, and apologised for not being able to attend its opening session on 27 October 1997. She informed the working group that she is familiar with indigenous issues, and that she is an honourary chieftain of an indigenous people in the United States of America.

38. The High Commissioner emphasised the importance of the procedure, as established by the Commission on Human Rights which ensures the participation of indigenous organisations without ECOSOC consultative status. She said that the working group represents an unusual standard setting activity by which governmental delegations have an opportunity to discuss directly with the beneficiaries of the draft declaration. She noted that the presence of indigenous delegations added legitimacy to the working group. She said that the draft declaration in many ways represents the acknowledgement of a new generation of rights. It covers the range of civil, cultural, economic, political and social rights; it draws on the right to development; it recognises as it stands at present the individual and collective rights of indigenous peoples. She encouraged all the interested parties to take their time, maintain an open dialogue and seek the mutual understanding which is the basis of consensus.

39. The High Commissioner informed the working group that she is the Coordinator of the International Decade of the World's Indigenous People with the responsibility of encouraging action and cooperation on indigenous issues throughout the United Nations system. Moreover, she informed the working group that an Indigenous Project Team is established within the office of the High Commissioner for Human Rights in order to strengthen its programme in this area.

40. At its 4th formal meeting, the Chairman proposed adoption at first reading of article 43. The following text was adopted by consensus at first reading:

"All the rights and freedoms recognised herein are equally guaranteed to male and female indigenous individuals."

41. At its 5th formal meeting, the Chairman proposed adoption at first reading of article 5. The following text was adopted by consensus at first reading:

"Every indigenous individual has the right to a nationality."

42. In connection with article 5, the Chairman noted that all States strongly supported the principle that every individual has the right to a nationality. He noted also that a number of States considered the article conferred the same rights as those under article 15 of the Universal Declaration of Human Rights and article 24(3) of the International Covenant on Civil and Political Rights. He acknowledged that a number of States said that article 5 must be read as recognising the right of every indigenous individual to citizenship within the State to which they belong, consistent with article 15(1) of the Universal Declaration on Human Rights and article 24(3) of the International Covenant an Civil and Political Rights. He observed that a number of States also identified the need, in due course, to clarify the relationship between the rights expressed in this article and the language of article 32 on citizenship and article 9 relating to the right to belong to an indigenous community. The Chairman noted that one State, which shared this view, noted that entitlement to a nationality within the constitutional framework of the State was consistent with its founding document, the Treaty of Waitangi; it was against this background that it understood the meaning of the article. Finally, the Chairman recognised that approval on first reading of article 5 occurred without prejudice to the discussions still pending on articles 9 and 32, whose contents have a bearing an the interpretation of article 5.

43. The Working group held three informal meetings on the principles underlying article 3. At its sixth meeting, the Chairman-Rapportour summarised the results of the informal meetings as follows:

All states recognised and upheld that all peoples have the right of self-determination, as enshrined in numerous international instruments and recognised by international law. A number of States expressed concern about the implications that an open reference to the right of self-determination might have. States and indigenous representatives considered that it was essential to have a clear understanding of the precise meaning and implications of draft article 3, as this right underpinned other articles contained in the draft. Indigenous representatives and some States considered that the inclusion of the right of self -determination was indispensable to the declaration. Indigenous representatives and some States also considered that the right of self-determination must apply on a non-discriminatory basis to all peoples. States hold a number of different positions. A number of States supported the principle contained in draft article 1. A number of States, although accepting the principle of self-determination of indigenous peoples, required further clarification on the implications of the exercise of this right within the legal and constitutional frameworks of existing states, which should be reflected in the text. Other States, that also supported this principle, expressed concern with respect to the implications that a wide recognition of that right in article 3 might have, since it might be inclusive of the right of secession, therefore affecting the territorial integrity and political unity of States. They also expressed the need that these concerns be reflected in the final version of article 3. Some other States took the position that the peoples entitled to self-determination are understood to be the entire peoples of a State or those who could constitute themselves as a sovereign independent State, and not subnational groups within an existing State. Some indigenous representatives pointed out that the indigenous peoples they were representing were not aspiring to secede from existing States, and that the right of self-determination, as set out in existing instruments already provided that secession could only be invoked in extreme cases, where the right of self-determination was denied by the State. They stated that article 3 should be adopted as currently drafted without amendments.

44. The working group held 9 informal meetings on the principles underlying articles 15, 16, 17 and 18. In connection with those articles the Chairman noted that there was broad consensus for the principles underlying articles 15, 16, 17 and 18. The Chairman took note that certain States could adopt the articles of Part IV of the draft declaration as currently drafted. He also acknowledged that other States required further discussion. Furthermore, some governmental delegations submitted amendments to the text of articles 15, 16, 17 and 18 for discussion at a future session of the working group. These amendments are contained in annex I of the present document. Comments relating to these articles by indigenous peoples' delegations are contained in annex II. One non-governmental organisation proposed amendments to articles 15, 17 and 18 and these are contained in annex III. The annexes are provided for information and are not part of the Chairman-Rapporteur's report.

45. The working group held three informal meetings on the principles underlying articles 14, 44 and 45. In connection with those articles the Chairman noted that there was broad consensus on the principles underlying articles 14, 44 and 45. Many States indicated that they could adopt paragraph 1 of article 14 and article 44 without change. Other States explained that they still had difficulties with these articles and required further clarifications.