Aboriginal Law Bulletin
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Aboriginal Law Bulletin |
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by Catherine J Iorns
The United Nations Working Group on Indigenous Peoples* (WGIP) continued its work in 1994 with its 12th annual session, 25-29 July. Despite being only one week long this year, it was attended by yet another record number of participants: approximately 800 in all, the vast majority of whom were indigenous representatives. From Australia, in addition to the government representatives, there were Aboriginal representatives from at least eight Aboriginal organisations (including four land councils) as well as those from government-funded bodies such as ATSIC and HREOC. There were several important agenda items of importance to Aboriginal peoples discussed, and they are summarised here.[1]
As reported last year,[2] the WGIP finalised the Draft Declaration on the Rights of Indigenous Peoples in August 1993. It was unable to formally submit it to the Sub-Commission on Elimination of Discrimination and Protection of Minorities (because the WGIP had not adopted the text during its official session) so this year it was to be formally adopted by the WGIP after general discussion of its provisions. It was made clear by the Sub-Commission, however, that any such debate would not lead to amendments of the Draft.
At the 12th session of the WGIP, one day was devoted to comments on the Draft. The topics of most concern were self-determination and the future of the Draft. A large number of indigenous representatives reiterated the view that the unqualified right to self-determination as contained in Article 3 was the most important right in the Declaration. In their view it provided the basis for all other, more specific rights in the Declaration and, as such, they would not allow it to be weakened. Some government representatives also supported Article 3 as it currently stands. Other government representatives disagreed with Article 3 on the basis that they did not agree that indigenous peoples had the right of separate selfdetermination as currently understood in international law. They thus similarly rejected the use of 'peoples' in the Draft, preferring instead 'people'.
Related to this was the disagreement over Article 31. Article 31 recognises the right of indigenous peoples "to autonomy or self-government in matters relating to their internal and local affairs" and explicitly recognises this right "as a specific form of exercising their right to self-determination." Some government representatives thought that even this reference to self-determination was too strong, although others accepted it. But of more concern is the disagreement that existed (and continues to exist) among indigenous peoples over whether to support Article 31. While the wording clearly states that autonomy and selfgovernment comprise only one option for the exercise of self-determination and thus does not expressly limit other options for the exercise of the right, some indigenous representatives expressed concern that its intention and thus effect was still to exclude other options and thereby limit self-determination in this way. They were concerned that, for example, the possibility of independence as an exercise of self-determination was thereby excluded. In my opinion, the wording of Article 31, as well as of the Declaration as a whole, does not support this negative interpretation. This concern should thus not prevent support for the Declaration. However, people must watch for any attempts by governments to place such substantive or interpretive restrictions on the relevant articles during the future approval process of the Draft.
The future of the Draft was of particular concern to indigenous representatives because it is to be considered by United Nations bodies to which most indigenous peoples, under the current rules, do not have access. Significantly, indigenous calls for access to participation in the discussion of the Draft Declaration by the Commission on Human Rights were supported by a number of government representatives, Australia in particular. The WGIP subsequently recommended that the SubCommission urge the Commission on Human Rights "to ensure that representatives of indigenous peoples were able to participate fully in the consideration of the text", in both the Commission and the Economic and Social Council. It noted that the future effectiveness of the Declaration would depend on its credibility and legitimacy with indigenous peoples as well as with governments.[3]
This recommendation for increased participation in the parent human rights bodies was made by the SubCommission when it met in August. However, it is not known at this stage what the response by the Commission on Human Rights will be.
Despite general indigenous support for as rapid approval of the Draft Declaration as possible, concern was expressed by some indigenous representatives that the Draft should not be forwarded to the Commission on Human Rights until sufficient supporting documentation was prepared explaining the provisions arrived at by the WGIP. It was acknowledged that this would necessarily entail a year's delay in the progress of the Declaration, but it was considered worth it in order to better persuade government representatives in these other bodies of the need for the Declaration as currently worded.[4] The concern was that, without such supporting documentation, the strong statements of rights in the current Draft would be eroded in these parent bodies, thus defeating a lot of the work accomplished by the WGIP. Neither the WGIP nor the Sub-Commission, however, adopted this view. They preferred instead to rely on the reports of the WGIP as providing justification for the provisions of the Declaration, on increased indigenous participation in these parent bodies when discussing the Declaration, and on any additional analyses of the Draft that could be completed in the shorter timeframe.[5]
The status of the Draft Declaration at present is that it has been approved by the Sub-Commission and has been referred to the Commission on Human Rights for discussion at its 51st session, to be held in early 1995 (typically from lateJanuary until mid-March). It is likely that a working group of the Commission will be established to consider the Draft and whether any changes should be made to it before approving it and submitting it to the Economic and Social Council. It has been recommended that, if such a working group is established, then it meet in July, immediately before the session of the WGIP, so as to enable the maximum participation by indigenous representatives in the discussion. It is not yet known whether that will be the case.
The agenda item that took the most amount of time at the 12th Session (more than 2 of the 5 days) was consideration of the developments over the previous year relating to the human rights of indigenous peoples. Indigenous and State representatives take this opportunity every year to present statements of what their countries have or have not achieved in this area, and what situations indigenous peoples face around the world. The Australian government statement, presented by Federal Minister for Aboriginal and Torres Strait Islander Affairs, Robert Tickner, focused on the Native Title Act 1993 (Cth), the Land Fund, the social justice package, the review of ATSIC, implementation of the recommendations of the Royal Commission Into Aboriginal Deaths In Custody (RCIADIC), action taken under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), and the Council for Aboriginal Reconciliation. The many statements made by Aboriginal representatives also focused on most of these matters although, not surprisingly, they put forward a different perspective from that presented by Robert Tickner.
In 1989, Mr Alfonso Martinez was appointed by the Sub-Commission as Special Rapporteur on treaties, agreements and other constructive arrangements between States and indigenous peoples, with the task of preparing a detailed report on these matters.[6] He presented a preliminary report to the 9th session of the WGIP in 1991[7] and his first progress report in 1992.[8] He was, however, unable to complete his second progress report for the 1994 session. He suggested that it would be ready for the 1995 session, with his final report to be submitted in 1996.
In 1993, the General Assembly proclaimed the ten years beginning 10 December 1994 the International Decade of the World's Indigenous Peoples, to follow on from the International Year.[9] The proclaimed goal of the Decade is the strengthening of international cooperation for the solution of problems faced by indigenous peoples in all areas, including human rights, the environment, development, health and education. Immediately before the 12th Session of the WGIP, a Technical Meeting on the International Year and the International Decade was held (July 20-22). This meeting considered the objectives of the Decade, possible activities for the Decade, and fund-raising.
These matters were also discussed at the WGIP and various suggestions were made by participants. The primary concern of indigenous representatives was that adequate resources were made available for activities to be conducted, unlike the situation in the International Year. Even the input of indigenous peoples into the planning of the Decade would depend on resources enabling access to organising bodies. In relation to the focus of the Decade, indigenous representatives stressed that the focus of the UN system should be "development through self-determination and that the Decade should produce a real change in the economic and social situations of indigenous peoples. Further, it was stressed that indigenous peoples must be decision-makers in such development and that the theme of official activities should be "A new relationship: partnership in action."[10] In relation to resources, ATSIC announced that it would contribute $10,000 (Aus) to the Voluntary Fund for the International Decade when the Fund was established.
The meeting agreed that 9 August would become the International Day of Indigenous Peoples, as this was the day on which the first WGIP meeting was held in 1982, thus marking the beginning of recognition of indigenous peoples and formal contact between the UN and indigenous peoples. It was also agreed that the Decade should be inaugurated in New York before the General Assembly on December 9,1994.
The World Conference on Human Rights, held in Vienna in June 1993, recommended that the General Assembly establish a 'permanent forum' for indigenous peoples within the UN system. Suggestions for such a forum were discussed at the WGIP's 12th Session.
It must be noted that the WGIP itself is a so-called permanent forum, but at least the Vienna Conference considered it open for the recommended permanent forum to either replace or supplement the WGIP. However, most representatives at the WGIP that spoke on the issue considered that the WGIP should continue to exist and that another forum be established in addition to the WGIP.
Many suggestions were made relating to the membership of the permanent forum, its functions, position within the UN system, relationship with the WGIP, and financing. While it cannot be said that anything was concluded on these issues, it was agreed that indigenous peoples should have a decision-making role within the permanent forum and that at least one of the functions of the forum would be the system-wide coordination of operational and development activities of the UN in relation to indigenous peoples. The Chairperson-Rapporteur of the WGIP has annexed a proposal for such a forum to the Report of the 12th Session.[11]
It was generally agreed that the WGIP should continue to exist and that it should continue to be responsible for standard-setting activities (including, for example, the conversion of the Declaration into a binding convention as well as the development of more detailed standards in specific areas) and for reviewing developments. However, it was also suggested that its mandate be expanded and strengthened. For example, Robert Tickner on behalf of Australia suggested that the review of developments be enhanced by inclusion of more detailed analysis and conclusions, that the Group review national and international standard-setting activity relevant to indigenous peoples, that it provide advice and assistance to governments and international organisations on indigenous peoples' human rights, and that it monitor the implementation of the Declaration once adopted. Lois O'Donoghue on behalf of ATSIC also suggested that the role of the WGIP be strengthened, and emphasised that its membership be expanded to include indigenous representatives.
Other suggestions made were that the WGIP monitor and evaluate progress on the International Decade and that it be given the mandate to hear complaints by indigenous peoples on human rights matters. The members of the WGIP agreed that it could expand its standardsetting activities, that it might play a role in monitoring the Decade, and that indigenous members should be selected. However, they did not comment in their conclusions on the other specific suggestions, such as that about the adoption of a complaint function.[12]
Perhaps of particular interest to Aboriginal and Torres Strait Islander peoples in Australia is the (repeated) recommendation that future sessions of the WGIP be held in locations other than Geneva. In the past it has been proposed that meetings be held in South America and Asia, with Chile and The Philippines being suggested locations. The obstacle to holding meetings outside of Geneva is the extra cost that the UN faces to service such meetings (for example, for travel and allowances for the staff required). However, it is to be hoped that some meetings will be held elsewhere, especially in the Asian region, as this will enable a much larger number of Aboriginal representatives to participate.
The focus of international attention in the area of indigenous rights in the near future will certainly be on the Draft Declaration and its consideration by the Commission on Human Rights. Indigenous peoples and supporters must work hard to ensure that the gains made in the Draft are not undone by State representatives wary of recognising indigenous rights. But this focus does not mean that the WGIP should disappear from view. In addition to any new permanent forum for indigenous peoples, the WGIP could play an increasingly important role in the international system Pressure also needs to be placed on States to expand and strengthen the role and membership of the WGIP in order to enable it to play an effective role. The stronger and more effective these international bodies are, the more relevant their work will be to the lives of indigenous peoples worldwide.
* Official title is: The Working Group on Indigenous Populations. "Peoples" is preferred by the author for its political implications.
[1] For a more detailed description of the proceedings, including statements made by government and indigenous representatives worldwide, see the Report of the Working Group on Indigenous Populations on its Twelfth Session, (hereafter 'Report on Twelfth Session) UN Doc E/CN.4/Sub.2/1994/30 (17 August 1994).
[2] Aboriginal Law Bulletin 64, October 1993.
[3] Report on Twelfth Session, supra fn 1, at para. 137.
[4] See, for example, the statement of the representative of the Grand Council of the Cress as reported in the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Forty-sixth session, Summary Record of la 29th Meeting, (hereafter 'Sub-commission 46th Session') UN Doc. E/CN.4/Sub.2/1994/SR.29 (26 August 1994), at pares 43-46.
[5] See, for example, the comments of Ms Dees, Chairperson-Rapporteur of the WGIP, as reported in Sub-Commission Forty-sixth session, supra fn 4, at para56.
[6] ECOSOC Resolution 1989/77 of 24 May 1989.
[7] UN Doc E/CN.4/Sub.2/1991/33 (30 July 1991).
[8] UN Doc. E/CN.4/Sub.2/1992/32 (25 August 1992).
[9] UNGA Resolution 48/163, 21 December 1993.
[10] Report on Twelfth Session, supra fn 1, at para 141.
[11] See Annex, Report on Twelfth Session, supra fn 1, pp 35-36
[12] See Report on Twelfth Session, supra In 1, at pares 153-155.
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