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by Sarah Pritchard
The UN Working Group on Indigenous Populations (WGIP) held its tenth session in Geneva from 20 to 31 July 1992.[1] The session saw vigorous debate on certain key provisions of the draft declaration on the rights of indigenous peoples, as well as the emergence of differences of opinion as to the desirable pace at which to conclude WGIP's drafting activities. The session also witnessed the intensification of dialogue between many indigenous peoples' organizations and governments, and the commencement of a debate on the future of UN involvement in indigenous matters upon the completion by WGIP of its standard-setting mandate.
A total of 615 people attended the session, including - from Australia - delegates of various land councils and other Aboriginal and Torres Strait Islander organisations, ATSIC and a Government delegation led by the Minister for Aboriginal and Tones Strait Islander Affairs, Mr Robert Tickner.
At its tenth session, WGIP had before it a working paper containing the preambular and operative paragraphs of the draft declaration agreed upon at first reading (paras. 1-19) and subsequently revised by the Chairperson/Rapporteur, Mrs Daes; the paragraphs not yet considered by Working Group members in first reading (paras.20-30); and comments and suggestions submitted since its last session.
In the working paper, Mrs Daes noted that in elaborating the final version of the draft declaration for consideration at WGIP's eleventh session, she intends to include an introductory interpretation of concepts and terms such as 'peoples', 'self-determination', lands and territories' and to make suggestions as to the organisation of the declaration. Amongst the paragraphs revised by her since the previous session was op. par. 1, dealing with self-determination. The working paper's revision omitted the reference in previous drafts to "a spirit of coexistence with other citizens" and provides:
"Indigenous peoples have the right of self-determination, in accordance with international law by virtue of which they may freely determine their political status and institutions and freely pursue their economic, social and cultural development.
An integral part of this is the right to autonomy and self-government."
This formulation is similar to the language contained in the conclusions and recommendations of the Nuuk Meeting of Experts on internal self-government for indigenous peoples[2] and addresses criticism of previous formulations as discriminatory in limiting a priori the options available in an exercise of self-determination by indigenous peoples. At the same time, it emphasises the importance of autonomy and self-government in the realisation by indigenous peoples of their right to self-determination. Also drawing on Nuuk, an explicit reference to the possibility of self-government and self-management arrangements not tied to indigenous territory and resources was added to op. par. 15 . In addition the working paper proposed three new paragraphs on the rights of indigenous peoples: to special protection and security during periods of armed conflict; to retain and develop their customary law and legal systems; and prohibiting forcible removals of indigenous peoples from their lands and territories.
Upon the completion of a first reading of all paragraphs, a second reading was commenced. The concept of 'self-determination, in particular, was the subject of much debate. In a Statement of Representatives of Indigenous Peoples, representatives of indigenous nations, peoples and organizations noted that self-determination is an inherent and inalienable right of all nations and peoples which exists whether or not governments and international organizations recognize if. Mrs Daes indicated that the principle of self-determination as reflected in the draft declaration had an internal character, not involving implications which might encourage formation of independent States. ATSIC considered the insertion of a qualifying provision far preferable to dropping the term. Australian experience had shown that the concept of self-determination was capable of providing a firm basis for progressively increasing decision-making powers of indigenous peoples. Self-determination was an 'aspirational concept' which provides a positive framework within which other key objectives can be pursued.
Robert Tickner also referred to the important foundation "the aspirational term 'self-determination"' has provided for Australia's domestic achievements. In a statement - welcomed by many, but considered disingenuous by some indigenous observers - the Australian Government delegation elaborated on its understanding of self-determination. This starts from the position that there is no current substantive international law recognition of a right of self-determination for indigenous people, as separate and distinct peoples within larger States. Whilst a 'principle' applying to all peoples, as a 'right' self-determination has been limited to the decolonization context As the decolonization process comes to an end, the concept must adjust to new circumstances. According to the Australian Government representative, self-determination in this sense is a continuing right of all peoples and individuals within each State to full and genuine participation in the political process by which they are governed. An exercise of self-determination as part of the internal political processes involves a range of possibilities short of choice of separate status as an independent State.
Canada, Chile and the Nordic countries indicated that their acceptance of a paragraph on self-determination would require the attachment of careful qualifications, limiting the principle of self-determination for indigenous peoples to the framework of existing States. The United States proposed that to avoid any confusion about the possibility of the application of self-determination to 'indigenous groups' (sic), the draft declaration should avoid the use of the term 'indigenous peoples' altogether or, alternatively, include a provision equivalent to that used in ILO Convention 169, making dear that the use of the term does not imply the right of self-determination as understood in international law. The New Zealand Government representative stated that 'autonomy' should be replaced with 'self-management. 'Self-management' was rejected by a scholar, Howard Berman, as an administrative concept, not including decision-making. A number of Governments, including Australia and NZ, opposed the inclusion of criminal jurisdiction as one of the affairs in relation to which indigenous peoples have the right to autonomy. This limitation was objected to by indigenous organizations, including the Northern Land Council (NLC) and the NSW Aboriginal Land Council (NSWALC).
More generally, the statements of the Governments of Brazil, Canada, Japan and the US indicated that certain key concepts such as 'self-determination', 'indigenous peoples', 'lands, territories and resources' needed clarification. The US Government opposed the characterization of many of the concepts in the declaration as rights, as well as the language of collective rights. The representative of the observer Government of Japan also expressed concern at the inclusion of the concept of collective rights and the potential for conflict with individual rights. A large number of indigenous peoples' representatives, including the Assembly of First Nations, voiced strong support for the retention of collective rights and reiterated the importance of the use of the term 'peoples' and the acceptance of their right of self-definition. Several speakers referred to the need for realistic, flexible provisions, for clarity of language and avoidance of redundancy, and to resist the tendency to make the rights articulated too detailed. At the-conclusion of the debate, 34 indigenous peoples' organisations submitted a statement recommending the submission of the draft declaration for technical review by the Secretariat upon the completion of the second reading.
WGIP concluded its second reading after consideration of op. par. 14. The three new operative paragraphs proposed by Mrs Daes were agreed upon and adopted at first reading. Two further new paragraphs, suggested by the Informal Drafting Groups which met during WGIP's eighth session in 1990, were also adopted. Operative par. 24 proclaims the right of indigenous peoples to their traditional medicines and health practices, including the right to protection of vital medicinal plants, animals and minerals; op. par. 33 affirms the duty of States, in consultation with the indigenous peoples concerned, to take effective measures to ensure the full enjoyment of the rights referred to in the Declaration. Of particular interest is op. par. 20, adopted at first reading, on the controversial question of the control of sub-soil resource exploitation projects in indigenous territories. The paragraph uses language which is not altogether free from ambiguity.
The debate on standard-setting also saw the emergence of differences of opinion as to the pace at which WGIP should conclude its drafting activities. One group, largely indigenous, considered that the text should remain in WGIP for a number of years to allow greater consensus to develop on certain of its provisions and to enable indigenous peoples' organizations to begin lobbying the Commission for Human Rights (CHR) in preparation for its consideration of the declaration. Another group of observers expressed concern at the loss of momentum which would result from delay in submitting a text to WGIP's parent bodies. In her closing statement, Mrs. Daes referred to WGIP's 'moral obligation' to finalize the text at the Sub-Commission level for the International Year for the World's Indigenous People in 1993. Support for completing WGIP's work on the draft declaration by 1993 came from the Indian Council of South America, ATSIC and the Governments of Australia, Canada and Finland. The Nordic Governments expressed support for substantial input by indigenous representatives at further stages in the elaboration of the draft declaration. In its conclusions and recommendations, WGIP decided to make every effort to complete its work on the draft declaration at its eleventh session in 1993 so that the text would be ready for review by relevant UN bodies in 1994.
An unprecedented number of representatives of Aboriginal and Tones Strait Islander organizations addressed WGIP on the agenda item, review of developments. Mrs Daes was presented with a copy of the Barunga Statement and speakers from most organizations repeated the call for the negotiation of a treaty with Aboriginal and Torres Strait Islander peoples. Whilst virtually all statements were critical of aspects of federal policy, a preponderance of comments were addressed to violations of the rights of Aboriginal and Tones Strait Islander peoples by State Governments. As in previous years, frustration was felt at the disparity between the benign face presented by the Federal Government in fora such as WGIP and the reality of State Governments' control of almost all aspects of the lives of Aboriginal and Islander peoples. The National Committee to Defend Black Rights (NCDBR) repeated its call for the inclusion of representatives of State Governments in the Australian Government delegation to the WGIP.
Lois O'Donoghue, Chairperson of ATSIC, reviewed the major shift over the last 20 years from assimilation to self-management as the cornerstone of government policy. She urged a change of the Constitution of Australia to include recognition of the special position of Aboriginal people in Australian society and appropriate recognition of their status as the First Australians. In the view of ATSIC, the Juvenile Crime (Serious and Repeat Offenders) Sentencing Act 1992 (WA) is in breach of Australia's human rights obligations. Referring to countless appeals to authorities in Australia and Papua New Guinea, George Mye, ATSIC Commissioner for Torres Strait, informed WGIP of the high risks posed to the fragile ecosystem of the Tones Strait Islands by the Ok Tedi Mine in Papua New Guinea, as well as by the opening of the Kutubu Oil Mining Operation in the Papuan Gulf. Mye stated that basic human rights of the Tones Strait Islander nation were being undermined under the Torres Strait Treaty between Australia and PNG in the interest of national priorities. He considered 1993 an important year for the reopening of Constitutional debate on the rights of indigenous peoples.
The statement of the lina Torres Strait Islander Resource and Research Centre also focussed on environmental problems facing Tones Strait Islander people, resulting from mining, industrial and logging activities in the Tones Strait and PNG. The Centre called for the involvement of Torres Strait Islanders in the management of their waters, greater protection of indigenous peoples from companies threatening their natural resources and the involvement of indigenous peoples in regulations on pollution control measures and clean-up programs. WGIP was addressed for the first time on the struggle of the Maralinga Tjarutja people for the dean-up of their lands, contaminated by British nuclear tests between. 1953 and 1957. The Maralinga Tjarutja people were still waiting for a response by the British Government to the Report of the Technical Assessment Group, which had been in its possession since 1990.
NAILSS provided an analysis of the decision of the High Court of Australia in Mabo v. Queensland[3]. Stating that no Aboriginal nations have ever surrendered sovereignty over their lands, NAILSS commented that the High Court did not deal with the question of how, if at all, the British acquired sovereignty of Australia.
The representative of the Tangankeld and Meingtangk peoples rejected the description of ATSIC as an example of the implementation of self-determination and also considered the decision in Mabo to be a hollow victory, not recognizing a right to compensation and enshrining the racist colonial principle of the government's right to extinguish Aboriginal title.
The Federal Minister for Aboriginal and Torres Strait Islander Affairs, Robert Tickner, referred to a framework resulting from the establishment of the reconciliation process which allows Aboriginal and Tones Strait Islander people to put forward proposals for the name, nature and possible content of a document (or documents), as well as for a negotiating process. The Minister reported on the national response to the recommendations of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC), the role of ATSIC in monitoring implementation, the preparation of an annual State of the Nation Report on Aboriginal social justice by an Aboriginal and Tones Strait Islander Social Justice Commissioner (see Update in this issue of the AboriginalLB); as well as on developments in relation to heritage matters, Aboriginal health, employment, languages and education. The Minister's statement also referred to the announcement by the Attorney-General that Australia was taking steps towards accepting the individual complaint procedures under the Convention Against Torture and the International Convention on the Elimination of All Forms of Racial Discrimination.
Referring to political, economic and policy restrictions, the National Coalition of Aboriginal Organizations stated that ATSIC was unable to respond to the needs, wishes and aspirations of Australia's indigenous peoples in a way which would bring about positive and permanent change. The imposition of a requirement to register on the Australian electoral roll in order to participate in ATSIC was a denial of self-determination. The Coalition was also concerned that the Federal Government had backed off its commitment to the Barunga Statement, having seen no agenda of the Reconciliation Council and no time-frame. It considered that the granting of land rights and the ownership of sub-surface resources would make a positive contribution to the economic, social and cultural development of national character and boost the domestic economy. The statement of the NCDBR referred to a relinquishment of responsibility by the Australian Government in transferring responsibility for Aboriginal Affairs to State Governments. Despite reports and recommendations of the RCIADIC, Aboriginal people were dying in custody at the same rate and there was an increase in the imprisonment rate of Aboriginal and Tones Strait Islander peoples generally and of women in particular. The NCDBR considered that the Summary Offences Act 1988 (NSW) and the Juvenile Crime (Serious and Repeat Offenders) Sentencing Act 1992 (WA) were in breach of international human rights obligations as well as the recommendations of the RCIADIC and criticized the response of the Federal Government.
The NSWALC informed WGIP that Aboriginal people in NSW were denied access to traditional sustenance and intellectual property and prevented from exercising traditional rights of fishing, hunting, food and medicine-gathering. The statement cited provisions of the Aboriginal Land Rights Act 1983 (NSW), the designation of National Parks and Wildlife Reserves and fishing legislation which violated their right of self-determination and the International Covenant on Economic, Social and Cultural Rights. Referring to the Concise Report of the Secretary-General on the intellectual property of indigenous peoples (see infra), the NSWALC commented that Aboriginal intellectual property and cultural heritage were exploited by non-Aboriginal people in documentaries on bush-food and bush medicine and in the display of sacred objects for touristic purposes. Citing the arduous and expensive struggle of the custodians of sacred sites near Alice Springs to stop the construction of a flood mitigation dam, the CLC referred to the inadequacy of Aboriginal heritage protection laws in Australia. The CLC called for an independent federal process not subject to the Minister's discretion, as well as adequate resourcing to enable Aboriginal organizations to use the process. It also reported on the failure of the NT Government to respect Aboriginal peoples' inherent right of self-determination by forcing Aboriginal communities into mainstream electricity service. Noting that federal heritage legislation had only recently been used for the first time on a 'semi-permanent' basis to protect a sacred area, the Kimberley Land Council (KLC) expressed its disappointment at the rare use by the Federal Government of its constitutional power tomake laws on Aboriginal and Islander affairs. The KLC informed WGIP of proposed legislation amending the Aboriginal Heritage Act 1972 (WA) to enable the proposed Aboriginal Heritage Authority to issue clearance certificates to developers without any requirement of consultation with traditional custodians. The threat to Aboriginal heritage in WA illustrated the vital need for WGIP's draft declaration to embody the basic principles of indigenous control and power to regulate incursions over their land, resources and culture.
The NLC stated that the decision of the High Court in Mabo will yield little practical benefit to the vast majority of Aboriginal and Torres Strait Islander peoples. It did not recognize equality of rights or entitlement; it recognized the legal validity of Aboriginal title until the white man wants that land. The judgment had done little to alter the land rights situation in Australia, described by a member of the Committee on Elimination of Racial Discrimination whilst examining Australia's eighth periodic report under the International Convention on the Elimination of All Forms of Racial Discrimination as 'deplorable'. According to the NLC, the rectification of the "national legacy of inutterable shame" referred to by the Court in Mabo can only lie in the negotiation of a treaty with the indigenous peoples of Australia, embodying the principles of the Barunga Statement. The Australian Government, far from assuming the challenge offered by the High Court, was moving to abdicate its responsibility to lower levels of government by using the rhetoric of 'co-operative federalism.
Kungarakuny Culture and Education Association, Finniss River, informed WGIP of the frustration experienced by Kungarakuny in the NT land rights process. Kungarakuny called on the Australian Government to inform non-indigenous Australians of Aboriginal and Tones Strait Islander claims to sovereignty, to address demands for a treaty and to acknowledge demands for cultural maintenance and preservation through, for example, control of education and instruction in traditional languages.
By its resolution 1988/134 the Economic and Social Council authorized the appointment of Mr. Alfonso Martinez as Special Rapporteur to prepare the outline of a study on the potential utility of treaties and other agreements between indigenous populations and Governments. At the tenth session, Martinez provided an oral presentation on his first progress report and indicated that his second and final progress report would be submitted in 1994, to the twelfth session and a final report in 1995. The first progress report contains the following conclusion on the juridical significance of the practice of treaty-making with Indian nations in North America:
"... in establishing formal legal relationships with indigenous North Americans, the European parties were absolutely clear - despite their notions of the "inferior" nature of the former's culture/society - about a very important fact; namely, that they were indeed negotiating and entering into contractual relations with sovereign nations, with all the legal implications that such a term had at the time in international relations."[4]
Martinez also notes[5] that he has selected Aboriginal Australians as a case study of a situation involving indigenous peoples not parties to, or the subject of a treaty, agreement or other constructive arrangement and meriting an in-depth review in forth-coming stages of his work. The Special Rapporteur supports the view that the negotiating and consenting process inherent in treaties, agreements and other constructive arrangements can be a practical tool for securing indigenous input into the recognition/restitution of indigenous rights and freedoms, and for establishing mechanisms to facilitate conflict-resolution of indigenous issues at all levels.
During the debate on this item, the Australian Government representative indicated that a treaty is a possible outcome of a decade-long programme of reconciliation under way in Australia.
Iina Torres Strait Islanders Corporation also took the floor under this item, calling on the Special Rapporteur to examine aspects of the situation in Australia, especially the ATSIC legislation and the situation of the Torres Strait Islander peoples: "The present structure of ATSIC discriminates against the TS people. We are represented on a 20 person commission by 1 commissioner. Inevitably, our interests, views and positions are diluted."
At its forty-fifth session in December 1990, the General Assembly proclaimed 1993 International Year for the World's Indigenous People. At its forty-sixth session a draft programme of activities for the International Year was adopted with the theme "Indigenous People - A New Partnership": As a contribution to the International Year, the Second World Conference on Indigenous Youth is to be held in Darwin in June or July 1993.
During the debate on this item, Mrs Daes suggested that the UN launch during the year a comprehensive programme to document conditions in which indigenous peoples live around the world. In connection with the Year, WGIP recommended that the UN publish an annual report on the state of the world's indigenous peoples, including relevant statistics and analysis compiled by UN bodies and agencies in collaboration with indigenous peoples and their organizations,and appealed to the Secretary General to consider establishing a separate unit assigned to the Working Group, as well as the appointment of indigenous professionals nominated by indigenous peoples into UN services.
At its tenth session, WGIP had before it the Report of a Meeting of Experts held in Nuuk, Greenland in September 1991 (see supra) to review the experience of countries in the operation of schemes of internal self-government for indigenous peoples.[6] The Meeting of Experts shared the view that indigenous peoples constitute distinct peoples and societies, with the right to self-determination, including the rights of autonomy, self-government, and self-identification.[7]
The Experts also viewed indigenous territories and resources as essential to the physical, cultural and spiritual existence of indigenous peoples and to the construction and effective exercise of indigenous autonomy and self-government. The Meeting concluded that autonomy and self-government arrangements were to be faithfully respected and could only be amended by a new agreement between the parties to the original agreement or in accordance with established constitutional or legal procedures. Further, arrangements should be made for the prevention of potential conflicts of competence and an effective, independent and impartial mechanism for solving disputes established by constitutional provisions or by law. Mrs Daes referred to the Meeting's valuable conclusions and recommendations as constituting significant guidelines, in particular for the interpretation and application of concepts such as 'self-determination', 'autonomy' and 'self-government'.
WGIP also had before it the Report of a Technical Conference held in Santiago, Chile in May 1992 on the realization of sustainable and environmentally sound self-development of indigenous peoples[8], convened with a view to making a contribution to the UN Conference on Environment and Development (UNCED). The Technical Conference emphasised the relevance of traditional indigenous practices to sustainable development and, in particular, the importance of the protection of intellectual property of indigenous peoples. Its conclusions and recommendations recognized that indigenous peoples traditionally lived in sustainable and harmonious relationships with their lands and environment, possessing a deep knowledge, understanding and management experience of the ecological systems on which they depended. The Conference regarded the ability of indigenous peoples to apply and develop this knowledge to their lands, and to share it with others, as vital in overcoming environmental degradation and as an important factor in the achievement of equitable and sustainable living conditions for all peoples throughout the world.[9]
The Conference recommended that the UN system take effective measures for the effective protection of property rights of indigenous peoples, including intellectual property rights, cultural property, genetic resources, biotechnology and biodiversity.
At its previous session WGIP had considered a paper prepared by Mrs Daes on the ownership and control of the cultural property of indigenous peoples.[10] Mrs Daes informed observers at the tenth session that she intended elaborating a study on measures to strengthen respect for the cultural property of indigenous peoples for the Sub-Commission's 1993 session. In a statement on this item, the CLC informed WGIP that no part of the Strehlow Collection had been returned to the Aboriginal custodians and that the Arrernte people were currently negotiating to purchase part of the Collection. Again the CLC referred to the piecemeal nature of Australia's heritage laws and their ineffectiveness in securing the protection and restitution of Aboriginal cultural heritage. ATSIC supported an investigation of the value of repatriation protocols, voluntary agreements and/or codes of conduct for collection institutions as a means of strengthening respect for cultural material. WGIP also had before it a note by the Secretary General on the intellectual property of indigenous peoples.[11] Taking the view that suggestions for the protection of indigenous peoples' intellectual and cultural property might overlap, WGIP recommended the title of Mrs Daes' study be revised to Protection of the cultural and intellectual property of indigenous peoples.
The tenth session saw the commencement of discussion on the future of WGIP and the form of UN involvement in promoting the rights of indigenous peoples upon the completion of its standard-setting mandate. Mrs Daes suggested that during the International Year careful consideration be given to proposals of some indigenous organizations for the establishment of a permanent UN council or forum for the world's indigenous peoples. Robert Tickner stated that it would be an important part of follow-through to the International Year to' maintain and enhance the effectiveness of WGIP and made a number of proposals to give effect to the full potential of the WGIP's mandate. The Grand Council of the Crees of Quebec stated that after completing the declaration, WGIP should be given the status of an established UN body. In its conclusions WGIP invited Mrs Daes to make recommendations for the implementation of the declaration, particularly as this concerned the future role of WGIP, and decided to consider the question "Future Role of the Working Group" as a separate item at its eleventh session in 1993.
The Technical Meeting originally met in Geneva in March 1992 and identified six major categories of activities for the International Year: human rights, development and environment, education and culture, health, self-management and self-government, and public events and information. Some elements, such as self-management and self-government, were considered integral to the development of all those themes. The Meeting reconvened for three days after WGIP's tenth session in July and elected Mr Mick Dodson (NLC) and Ms Rigoberta Menchu (International Indian Treaty Council) as Vice-Chairpersons. They prepared summaries of discussions on the aims of special projects to be implemented during 1993, on consideration of projects for the International Year and on Public Information Activities. The first aim of special projects: to ensure that indigenous peoples and governments work as equal partners in dignity and mutual respect in all matters concerning indigenous peoples and that these peoples can consider and execute their own projects. Objectives of projects for International Year: highlight projects of long-term benefit to indigenous peoples and sustainable development programmes so that indigenous peoples have full access to technology and investment. Amongst projects: creation of permanent council of indigenous peoples promoting access to UN fora, publication of annual UN report on state of human rights of indigenous peoples and visits by Working Group to areas in which indigenous peoples live, particularly those subjected to armed internal conflict.
[1] Report of the Waking Group on Indigenous Populations on its tenth session E/CN.4/Subl/1992/33
[2] 2. E/CN.4/1992/42, p.12.
[3] Eddie MaIo and Ors V The State of Quee nsland (1992) 66 ALJR408
[4] E/CN.4/Sub2/1992/32, par.138
[5] E/CN.4/Sub.2/1992/32
[6]E/CN.4/1992/42
[7] E/CN.4/1992/42, par54
[8] E/CN.4/Sub2/1992/31 and Add.1.
[9] E/CN.4/Sub2/1992/31, p.16
[10] E/CN.4/Sub2/1991/34.
[11]E/CN.4/Sub2/1992/30
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