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Professor David Weissbrodt
University of Minnesota Law School
The third session of the Working Group on Indigenous Populations occurred 30 July to 3 August 1984. The Working Group was estabished by the Economic and Social Council (ECOSOC) in its decison 1982/34 of 3 May 1982, to meet once a year for up to five days during the week just preceding the annual session of the UN Sub-Commission on Prevention of the Discrimination and Protection of Minorities. The Working Group received a two-part mandate from ECOSOC:
(1) to review developments pertaining to the promotion and protection of the human rights and fundamental freedoms of indigenous populations and
(2) to give special attention to evolution of standards concerning the rights of indigenous populations...
This article presents material on the membership of the WorkingGroup as it changed so radically in the third session, participation in the Working Group's session principally by members of indigenous populations, the Working Group's review of developments relating to the human rights of indigenous populations, the Working Group's efforts in regard to evolution of standards - particularly as to (1) the definition of indigenous populatons and (2) land and natural resources - the Working Group's review of the Cobo report, proposals for the establishment of a fund for encouraging indigenous participation in the Working Group's sessions, and a conclusion.
Perhaps,the mos timportant single factor in establishing the nature of the third session of the Working Group was the almost total change in membership from the first two sessions. The first two sessions were shaped in large part by the Chairman and Rapporteur Asbjorn Eide, a member of the Sub-Commission from Norway. Mr Eide was not re-elected by the Commission on Human Rights in March 1984 to serve anothe three years as a member of theSub-Commission and was thus ineligible to serve on the Working Group. The only member of the Working Group to run and gain re-election was Professor Ivan Toshevski of Yugoslavia, who served as the Eastern European member of the Group. Since Eide was not re-elected, the outgoing Chair of theSub-Commission appointed Mrs Erica-Irene Daes of Greece to serve as the member from the Western European and other groups of nations. She was also selected the Chair/Rapporteur for the third session of the Working Group. The members of the Working Group from Africa, Asia and Latin America did not seek re-election to the Sub-Commission and accordingly could not serve on the Working Group. The outgoing Chair of the Sub Commission thus selected seveal new members of the Sub-Commission, including Mrs Gu Yijie of China, Mr Enzo Guistozzi of Argentina, and Mr Aidiid Abdillahi Ilkahanaf of Somalia. Mrs Gu attended the Working Group. Mr Guistozzi could not attend and was replaced by Mr Miguel Alfonso-Martinez of Cuba. No member could attend from the Africa region.
This nearly total lack of continuity between the first two and the third session of the Working Group had very considerable consequences for the effectiveness of the third session. In the third session the participants and the members were at very different levels of understanding. For Mr Toshevski, the only remaining member of the Working Group, for several observers from governments, and for a number of indigenous participants there was dissatisfaction with the third session because of the lack of progress and the repetition of the first two sessions. For the WorkingGroup,there was a need to develop thesame level of understanding which had already been reached by those who had been present in previous years.
One aspect of the third session of the Working Group which was carried over from the first two sessions was the active participation of members of indigenous populations in the Group's discussions.Themost significant and distinctive chaacterist of the Working Group has been the consideable involvement of indigenous individuals from around the world. Indeed, the Working Group is the only body within the human rights world which gives such an important role to the human rights victims and their immediate representatives. During each of the three sessions of the Working Group, the participation of indigenous peoples has increased. For the first time at the third session of the Working Group several Indians from Brazil and Ecuador, Inuits of Greenland, and indigenous partidpants from the Philippines, Bangladesh, and Papua attended the Working Group, in addition to the Indians from North, Central, and South America, Aboriginals from Australia, and the Sami of Northern Scandinavia who had attended in previous years.
A pattern has developed during the three sessions of the Working Group whereby the first time an indigenous participant makes a statement, he or she will invariably present a description of many grievances against the government controlling the territory where they live. During the third session particularly eloquent statementswere made by the Brazilian lndians about their treatment. Unfortunately, the Chair took a very restrictive view, at least at first, about the mandate of the Working Group to 'review developments'. When a speaker from the New Brunswick Indians of Canada criticised the Canadian government and particularly certain statements by a previous speaker for the government, the Chair permitted the speaker to finish his statement and then admonished him that the Working Group was not a'Chamber of Complaints' by which she initially meant that speaker should not criticise governments at all. This ruling would have completely undermined the half of the mandate of the Working Group to 'review developments' and was in conflict with the meaning of ‘review developments’ as this term has been interpreted in other UN bodies, such as the Working Group on Slavery (which has an analogous mandate to'review developments' on slavery and slave like practices). Although the Chair never expressly withdrew her observations about the statement of the New Brunswick Indians, it became clear as the session continued that she would allow criticism of governments under the theory that the individual was merely providing information about 'recent developments'.
All-in-all, the discussion of developments in the third session was somewhat repetitive of the first two sessions. The Chair made no effort to bring cohesion to the discussion, to synthesise and broaden the issues, to generate meaningful exchanges, or to summarise what had been said so participants knew what had been understood. Instead, the discussion was largely a series of isolated speeches by indigenous participants with a few statements by governments.
Despite the clear mandate of the Working Group to review developments in regard to the implementation of the human rights of indigenous populations and despite the pactice of three sessions in hearing the concrete concerns of indigenous participants, it was clear that the Chair (and to some extent the remainder of the Working Group) was very uncomfortable with the criticisms of governments which were aired during the third session of the Working Group. This discomfort was reflected in the Sub-Commission resolution 1984/35B adopted after the third session which requested the Working Group ‘to relate its consideration of developments affecting the rights of indigenous populations to the process of preparing international standards thereon...’ This request of theSub-Commission cannot alter the instructions which the Working Group has received from ECOSOC, but it will bolster the Chair's efforts to curb criticisms of governments which do not relate to developing standards.
The expectations of indigenous participants in attending the Working Group cannot be thwarted by the discomfort of the Working Group with its role as a sounding board for their'concrete experiences. in future, however, indigenous participants might be well advised to couch their factual statements within the context of requests for standards.
In its mandate from ECOSOC the Working Group on indigenous Populations was instructed to ‘give special attention to the evolution of standards concerning the rights of indigenous populations, taking account of both the similarities and the differences in the situations and aspirations of indigenous populations throughout the world...’ ECOSOC res. E/1982/34 (1982). The initial draft of the Working Group for its third session did not indicate how the Working Group would ultimately deal with the problem of the 'evolution of standards,' but after a meeting of the Working Group a rather weak statement urged by the Cuban member of the Sub-Commission was adopted, as better than the silence of the initial draft:
There was also general agreement among members of the Working Group that the issue of determining the foundations of the rights of indigenous populations, both under national and international law, was a matter of interest for the future work of the Working Group and that it should continue to be given consideration by the Working Group and Sub-Commission.
The Working Group reaffirmed its right to draft standards, but it avoided any decision as to how it will proceed. In its resolution 1984/ 35Bof 30 August 1984 the Sub-Commission reinforced the standard-setting task of the Working Group and gavesome guidance by requesting theGroup ‘henceforth to focus its attention on the preparation of standards on the rights of indigenous populations and ... to consider in 1985, in addition to the question already scheduled in its fourth session, the drafting of a Body of Principles on indigenous Rights based on relevant national legislations, international instruments and other juridical criteria ... ’ Perhaps, at the fourth session of the Working Group a clearer determination will develop in following this clearer mandate from the Sub-Commission and as the new members of the Group assert themselves.
At the second session, however, the Working Group had previously decided to give two questions of standards greater attention at the third session: the definition of indigenous populations and land and natural resources. It is to those two subjects that this article now turns.
On the problem of defining peoples, the Working Group's report on its third session highlighted a statement made by Leroy Littlebear on behalf of several indigenous and other organisations, which statement was published as Appendix 3 to the Working Group's report. The statement says, ‘The question of the definition of indigenous populations was not discussed at great length before the third session of the Working Group, because it appeared to be the consensus of indigenous participants that the question of definition was entirely premature, because most of the time was absorbed with the discussion of the critical issue of land,and because indigenous peoples possess quite diverse approaches to defining their own peoples. There was, however, a consensus that any definition which might eventually need to be drafted in connection with the preparation of a Declaration of treaty should not come from governments, but from indigenous peoples themselves’.
The Chair/Rapporteur of the Working Group is recorded by the draft report of the Sub-Commission as having said that the Working Group had tentatively accepted the working definition of Cobo.
Indigenous populations are composed of the existing descendants of the peoples who inhabited the present territory of a country wholly or partially at the time when persons of a different culture or ethnic origin arrived there from other parts of the world, overcame them, and by conquest, settlement or other means, reduced them to a non-dominant or colonial condition; who today live more in conformity with their particular social, economic and cultural customs and traditions than with the institutions of the country of which they now form part, under a state structure which incorporates mainly the national, social and cultural characteristic of other segments of the populations which are predominant. UN Doc F/CN.4/Sub.2/L.566 at 10 (1972).
This decision must have been taken in private session and not indicated in the report of the Working Group. Since there are defects in the Cobo definition, it remains to be seen at later sessions whether anyone can develop a definition or a series of definitions which will satisfy indigenous peoples, governments, and the Working Group.
From the very first session of the Working Group it was obvious that land constituted the most significant issue facing indigenous peoples around the world. For some indigenous communities the problem was preserving their present territories from further encroachment by the culture which possessed control of the government. Other indigenous peoples want to obtain the return of land taken from them in the past. In some countries the indigenous communities are not permitted to hold title to land and to control their land on the same terms as other individuals and groups.
The right to property was recognised expressly by the Universal Declaration of Human Rights, but the two Human Rights Covenants do not mention this right and the trend in international law since at least World War II has been to diminish the protection of property. The socialist view of property is that land and other natural resources belong to the state and not to private individuals or groups. In socialist states various compromises may be made in practice to permit individuals to hold land, but the policy remains. Most developing countries view land and other fixed natural resources as a means for pursuing their overwhelming objective of economic development; they are very suspicious of any claims for legal protection of land or property, because they may wish to nationalise or otherwise control these economic resources to achieve development. In most market economies full title to land may be held by individuals or persons recognised by the law, such as corporations. Land is viewed as a store of wealth and as a resource to be exploited for the individual good, with some limitations for protecting such general public objectives as health, the environment, etc.
Indigenous peoples have a unique,spiritual relationship to their land, which is very different from any of the views harboured by the other societies identified above. In general, indigenous peoples have organised their communities so that they hold their land in common, not as individuals.They do not view their land as acommodity, but as an intimate part of their life, culture, personality, religion, self-determination, and governmental structure. Probably the most difficult task facing the Working Group is to reconcile these very different views of land in a way which will begin to satisfy the indigenous peoples and governments.
The Working Group heard a considerable number of statements on land rights from indigenous participants, governments, and others. One weakness of the first three sessions was the failure of the Working Group to begin developing its own position on the issue of land. This weakness was much more pronounced in the third session, because one might have expected more results from the third sesslon,which was specifically designated to consider issues related to land. Of course, as with many other aspects of the Working Group's efforts, the new membership of the Working Group prevented such progress because the new members needed to be educated once again about the issues.
In its resolution 1984/358 of 30 August1984, the Sub-Commission requested the Working Group ‘to consider elaborating, as appropriate, analytical papers with a view to their subsequent circulation to interested observers, analysis of basic issues such as the legal foundations of indigenous rights in general, as well as draft principles relating to land rights.. ’. The Sub-Commission evidently hopes that the Working Group will thereby improve the quality of its further discussion on issues relating to land.
The third session of the Working Group on indigenous Populations was the first at which the complete Study of the Problem of Discrimination Against Indigenous Populations by Special Rapporteur Jose R. Cobo was available for use by the Working Group. This multi-volume tome was begun in 1971.
In retrospect, the study has taken so long that history has overtaken its usefulness. It might have been reasonable in 1971 to have sought information from governments, intergovernmental organisations, non-governmental organisations and scholarly works, but in1984 the study appears quite incomplete in having failed to seek the views of indigenous peoples themselves. If the study will have any usefulness, it is in its exhaustive collection of material from governments, international organisations, and conferences relating to issues affecting indigenous peoples. Until 1984, the study lacked conclusions and recommendations; it might have been expected that these final portions of the study would bring some coherence and direction to the tremendous diversity of the earlier volumes. Instead, the conclusions and recommendations (FJCN.4Sub.2/1983/21/ Add.8), while representing a relatively progressive attitude towards the aspirations of indigenous peoples, are themselves so disorganised and repetitive, that they will be of very little use without considerable distillation. Whatever might have been expected of the study authorised so long ago, Cobo has not provided a comprehensive and insightful analysis of the problem of indigenous peoples which the Working Group can easily use. The Working Group must, instead, mine the rich primary material collected by Mr Cobo in the hope of developing standards defining indigenous rights.
In its resolution 1984/35A of 30 August 1984 the Sub-Commission recognised the Cobo study as ‘an invaluable contribution to the clarification of the basic legal, social, economic and cultural problems of indigenous populations’, and decided ‘to consider the study's conclusions, proposals and recommendations as an appropriate source for its future work... ’. Hence, the Sub-Commission wisely accepted the Cobo study as a source of material for the working Group without charging the Group with the onerous responsibility of reviewing its myriad conclusions. TheSub-Commission also asked that the study be published, but only in an edited and condensed version because of the study's extreme length.
At its third session, the Working Group considered a proposal to establish a fund to pay for the travel and accommodation of those indigenous participants who would not otherwise be able to attend the Working Group deliberations.
The fund proposal, as actually submitted to the Sub-Commission and adopted in Sub-Commission resolution 1984/35c of 30 August 1984, recommended the creation of a Board which would manage the United Nations Voluntary Fund for Indigenous Populations to be ‘composed of five persons with relevant experience on isses affecting indigenous populations and who will serve in their individual capacity. The members of the Board of Trustees shall be appointed by the Secretary General of the United Nations for a three-year term renewable in consultation with the then current Chairman of the Sub-Commission and at least one member of the Board shall be a representative of a widely recognised organisation of indigenous people'. The Sub-Commission required that recipients of assistance from the fund must be ‘representative of indigenous peoples’ organisations and communities ... who would not, in the opinion of the Board, be able to attend the sessions of the Working Group without the assistance provided by the fund, and... would be able to contribute to a deeper knowledge of the problems affecting indigenous populations and who would secure a broad geographical representation ... ’ of those indigenous participants appearing before the Working Group.
This Sub-Commission recommendation must be accepted by the Commission on Human Rights in February-March 1985, ECOSOC, and ultimately the General Assembly in fall 1985.
It is too soon to know whether the unique features of the Working Group on indigenous Populations will be copied in other areas of the UN system. Certainly, the Working Group's willingness to receive information directlyfrom human rights victims and to foster dialogue between the victims and the governments concerned are worthy of consideration by other human rights bodies. The Working Group has been given a very interesting combination of standard-setting and implementation roles. The next few sessions of the Working Group will tell whether it can fulfil both such roles successfully.
Pursuant to the plan of work which the Working Group initially adopted at its second session, it will consider at the 1985 session the ‘right of indigenous populations to develop their own culture, tradition, language and way of life, including the right to freedom of religion and traditional religious practices’. Furthermore, the Sub-Commissionon Prevention of Discrimination and Protection of Minorities in resolution 1984/35B of 30 August 1984 has requested the Group ‘henceforth to focus its attention on the preparation of standards on the rights of indigenous populations and ...to consider in 1985, in addition to the question already scheduled in its fourth session, the draftingof a Body of Principles on Indigenous Rights based on relevant national legislation, international instruments and other juridical criteria...’
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