Pritchard, Sarah --- "United Nations Working Group on Indigenous Populations" [1992] AboriginalLawB 6; (1992) 1(54) Aboriginal Law Bulletin 13

• United Nations Working Group On Indigenous Populations

---

United Nations Working Group on Indigenous Populations

by Sarah Pritchard

In the early 70's an awareness began developing at the UN of the need to improve on its 'previously indifferent contribution' to the indigenous cause.[1] Indigenous peoples were excluded from the enjoyment of a restricted regime for the protection of ethnic, religious and linguistic minorities.[2] The limited relevance paid to the struggles of indigenous peoples of considerable developments in the codification of human rights law and the establishment of enforcement procedures was becoming increasingly apparent.

In 1971, the Sub-Commission on Prevention of Discrimination and Protection of Minorities appointed Special Rapporteur, Jose R. Martinez Cobo, to prepare a study of the problem of discrimination against indigenous populations.[3] In response to the need demonstrated in the early chapters of this study, the Sub-Commission was authorised to establish annually a Working Group on Indigenous Populations (WGIP).[4] The WGIP is made up of five members elected bi-annually by the Sub-Commission from its own ranks of independent experts and representing the world's five geographic regions.[5] It meets each year for up to two weeks immediately prior to the SubCommission's annual session in August and has a two-fold mandate; (a) to review developments pertaining to the promotion and protection of human rights and fundamental freedoms of indigenous populations....; and (b) to give special attention to the evolution of standards concerning the rights of indigenous populations ...[6]

On one hand, the establishment of the WGIP was an event of limited significance. It is located at the lowest level of the UN hierarchy. It is accountable to, and its recommendations must pass through, a series of parent bodies - the Sub Commission, the Commission on Human Rights, the Economic and Social Council (ECOSOC), the Third Committee of the General Assembly and the General Assembly. Some Member States see little point in engaging with indigenous peoples in the Working Group when their interests can be protected more effectively and with less publicity at a higher level.

At the same time, indigenous peoples and their organisations have been extraordinarily successful in claiming the forum provided by the Working Group as their own. At the WGIP's first session in 1982, rules were adopted permitting any interested person to speak and allowing receipt of information from any source.[7] Thus, unlike parent bodies, the WGIP is open to organisations and individuals not accredited with consultative status in ECOSOC (so-called non-governmental organisations or NGOs). A UN seminar in January 1989 saw equal participation of indigenous peoples and nominees of States, as well as the election of an indigenous participant as rapporteur.[8] The Group's non-status methods of work have brought about a reasonably wide representation of indigenous peoples and thorough presentation of substantive issues.[9] The creation in 1985 by the General Assembly of a 'Voluntary Fund for Indigenous Populations' has also assisted indigenous participation in the Working Group's deliberations.[10]

At its early sessions the WGIP was primarily concerned with the 'review of developments' aspect of its mandate.[11] Whilst insisting that it is not a tribunal with the function of assessing evidence of violations of indigenous peoples' rights, the WGIP considers that the evolution of standards can be considered properly only in the light of "real-life experiences".[12] Its initial task was to identify substantive areas of concern and to examine the law, policies and practices of Governments and the aspirations of the indigenous peoples concerned. Although the drafting of standards is now well-advanced, the review of developments continues to occupy a central place in the Group's annual deliberations. This item not only facilitates the important exchange of information amongst indigenous organisations, but has become a forum for dialogue between some Governments and indigenous peoples on matters of policy. In the face of immense media interest, Governments often have little alternative but to respond to complaints against specific national practices and report on steps taken to honour promises made to previous sessions of the Working Group.

After discussion of a number of options in fulfilment of its standard-setting mandate, the WGIP decided at its fourth session in 1985 that its aim should be to produce 'a draft declaration on indigenous rights' for eventual adoption by the General Assembly.[13] Draft standards proposed by indigenous observers at the same session left little doubt as to the central aspiration of the indigenous peoples concerned. The following principle was contained in the text drafted at a strategy meeting of 90 indigenous participants:

"All indigenous peoples have the right of self-determination, by virtue of which they have the right of whatever degree of autonomy they choose. This includes the right to freely determine their political status, the right to freely pursue their own economic, social, religious and cultural development and determine their own membership and/or citizenship without external interference."[14]

At the WGIP's sixth session in 1988, the chairperson tabled a Working Paper containing a draft Universal Declaration on Indigenous Rights[15]; in 1989 a Revised Draft Universal Declaration on the Rights of Indigenous Peoples[16] was published for discussion. After further revision, the preamble and the first three operative parts of the draft were submitted by the members of the Working Group at first reading at the 1991 session.[17] PART I guarantees the right of indigenous peoples to self-determination, as well as equal rights. Operative paragraph 1 provides:

"Indigenous peoples have the right to self- determination, in accordance with international law. By virtue of this right, they freely determine their relationship with the States in which they live, in a spirit of co-existence with other citizens, and freely pursue their economic, social, cultural and spiritual development in conditions of freedom and dignity."

PART II recognises the collective right to protection against genocide; collective and individual rights to distinct ethnic and cultural characteristics and identities; to protection from cultural genocide; to the manifestations of indigenous cultures; to spiritual and religious traditions, customs and ceremonies; to languages; to control of educational systems; and to adequate financial and technical assistance from States for indigenous development. PART III deals with the ownership, use and control of lands and territories. It recognises indigenous laws, customs and land tenure systems, the right to restitution of, or compensation for, lands confiscated and the right to protection of the environment. A paragraph in PART III dealing with the question of resource exploitation and PARTS IV - VII of the draft remain to be adopted at first reading at the WGIP's 1992 session.[18] The theme of economic rights is further taken up in PART IV which affirms the right of indigenous people to maintain and develop traditional economic structures and ways of life, to engage in traditional and other economic activities, and to determine, plan and implement social and economic programmes affecting them. PART V further addresses the question of political rights, recognising rights of indigenous peoples to participation in the life of the State; to have their specific character reflected in the legal system and political, socio-economic and cultural institutions; to be involved in devising laws and administrative measures which may affect them; and to autonomy in matters relating to their own internal and local affairs.

In a number of respects, the language of the draft has been strengthened to reflect indigenous criticism of earlier formulations.[19] Substantive disagreement, it seems, now focuses on two questions. Agreement is yet to be reached on the text of the paragraph dealing with the critical issue of sub-soil resource exploration. The original draft of the Declaration required that indigenous consent be provided to the exploration for, and exploitation of, sub-soil resources. The weakening of this paragraph to require simply that consultation take place has attracted much adverse criticism from indigenous NGOs. The right of indigenous peoples to self-determination has also been qualified in order to make the inclusion of a paragraph dealing with this question acceptable to Governments. In particular, the present formulation's treatment of the question of political rights and the question of indigenous sovereignty is the subject of considerable division. While some more conservative indigenous participants have expressed support for the formulation, a majority regard it as a retreat from the first revised text, which simply provided that nothing in the draft could be used to deny any people its right to self-determination.[20]

Understandably, the working group is keen to come up with a text which not only keeps faith with the aspirations of indigenous peoples but also takes due account of the interests of Governments. It realises that it is at the beginning of a multi-stage process and is aware of the consequences of delay for the continuation of its funding and the dissipation of interest in the standard-setting exercise.[21] Some indigenous delegations, however, call for caution, arguing that once the text moves out of the Working Group they will lose the opportunity to influence the process. Some argue, as a matter of strategy, that the completed text be retained as a Declaration of the Sub-Commission to avoid the watering down seen to be inevitable once the Declaration moves into the more overtly political waters of the Sub-Commission's parent bodies.

In addition to the review of developments and evolution of standards the- WGIP considered, at its ninth session in 1991, a preliminary report on treaties, agreements and other reconstructive arrangements between States and indigenous peoples[22]; a working paper on the question of the ownership and control of the cultural property of indigenous peoples[23]; and a working paper on suggestions for United Nations activities for the International Year for the World's Indigenous People (1993)[24]. With the inclusion of items such as these, it is hoped not only to involve the WGIP in issues of immediate concern to indigenous peoples but also to secure an ongoing role for the WGIP or similar body after the submission of the draft Declaration to higher UN bodies, probably in 1993.[25] It can be expected that the question of the form of future UN involvement in the struggles of indigenous peoples will be the subject of extensive debate at the Working Group's 1992 session. It may be that a body at a higher level, offering perhaps technical assistance to indigenous communities and supervising compliance with the Declaration, will be seen as a more appropriate vehicle for conveying the commitment of the UN to the world's indigenous peoples.

---

[1] Bennett, C., "Aboriginal Rights in International Law", Occasional Paper No 37 of the Royal Anthropological Institute of Great Britain and Ireland, 1978, p.49.

[2] In the early days of the UN, resistance to the idea of minority rights was strong and the view prevailed that the universal protection of human rights rendered redundant the need for a specific regime for the protection of minorities. A single article, Article 27 of the International Covenant on Civil and Political Rights, referred to the rights of minorities. During the debates on this article in the Third Committee of the General Assembly of the UN, the Australian delegate opined that Aborigines were "still very primitive" and couldn't be considered minorities: A/C 3/SR 1104, 14 November 1961, s.26, s.7.

[3] Issued in consolidated form under the symbol E/CN. 4/Sub.2/1986/7 and Add.1-3.

[4] ECOSOC Resolution 1982/34,7 May 1982.

[5] See Sanders, D., "The UN Working Group on Indigenous Populations', (1989) 11 Human Rights Quarterly, p.406.

[6] See ECOSOC Resolution 1982/34,7 May 1982.

[7] See Coulter, R., 'The Evolution of International Human Rights Standards: Implications for Indigenous Populations of the Americas", Indian Law Resource Centre, Washington D.C. 1984, p.68.

[8] See "Report of a Seminar: The effects of racism and metal discrimination on the economic and social relations between indigenous peoples and States Geneva, 16-20 January 1989, HR/PUB/89/5.

[9] See Alfredsson, G., "Fourth Session of the Working Group on Indigenous Populations', in Thompson, R., (Ed.), The Rights of Indigenous Peoples in International Law: Essays car Self-Determination, University of Saskatchewan Native Law Centre, pp 38-39.

[10] The Group's 1991 session was attended by representatives of 72 indigenous peoples' nations and organisations, 10 of which are NGO's in consultative status; representatives of 47 other organisations and groups, including 21 in consultative status; as well as 117 individual scholars, human rights experts, activists and observers. Australian Aboriginal and Islander organisations represented by observers included: NAIISS, the Central and Northern Land Councils, CDBR and the Top End Aboriginal Coalition. Representatives of ATSIC and the Aboriginal law Centre also attended: See Report of the Working Group on Indigenous Populations an its ninth session, E/CN.4/Sub.2/1991/40/Rev.1,3 October 1991, ss3-13, pp1-4.

[11] See E/CN. 4/Sub.2/1982/33; E/CN.4/Sub2/1983/20; E/CN.4/Sub2/1984/20.

[12] E/CN.4/Sub2/1982/33, s.121.

[13] E/CN.4/Sub.2/1985/2, Ann.IL

[14] E/CN.4/Sub2/AC4/1985/WP.4 See also draft of the World Council of Indigenous Peoples, E/CN.4/Sub2/AC.4/1985/Wp.4/Add.4.

[15] E/CN.4/Sub.2/1988/25.

[16] E/CN.4/Sub2/1989/33.

[17] See Report of the Working Group on Indigenous Populations on its ninth session E/CN.4/Sub2/1991/40/Rev.1, Ann. IIA.

[18] Id, Ann. IIB

[19] Paragraph 27, for eg., as presently formulated, no longer provides simply for a duty of States, but rather a right of indigenous peoples to claim that States honour treaties and other agreements concluded with them.

[20] See discussion in the Report of the WGIP on its ninth session (1991): E/CN.4/Sub2/1991/40/Rev.1, s.4

[21] In this connection, the Australian Government delegation refers to "the danger of drift': See Statement by Australian Delegation to Working Group on Indigenous Populations, Ninth Session, Geneva, 30 July, 1991.

[22] E/CN.4/Sub.2/1991/33.

[23] E/CN.4/Sub2/1991/34.

[24] Proclaimed by General Assembly resolution 45/164 of 18 December 1990; see E/CN.4/Sub.2/1991/39.

[25] As separate items on the agenda at its tenth session in 1991, the WGIP has decided to consider the questions "Economic and social relations between indigenous peoples an States', "Ownership and control of the cultural property of indigenous peoples" and "International Year for the World's Indigenous People See Report of the Working Group on Indigenous Populations on ifs ninth session E/CN.4/Sub2/1991/40/Rev.1, Ann. I, Recommendation 33.