Indigenous Law Bulletin
by Darren Dick
The United Nations (‘UN’) convened the third World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (‘WCAR’) in Durban, South Africa from 31 August to 8 September 2001. The conference was a meeting of governments with observer status for UN agencies, human rights institutions and non-government organisations. The WCAR was convened due to concerns at the rise of racism and new manifestations of it across the world and the ineffectiveness of current efforts to combat it. The UN described the conference objectives as ‘to produce a declaration that recognizes the damage caused by past expressions of racism and that reflects a new global awareness of modern forms of racism and xenophobia; to agree on a strong practical programme of action and to forge an alliance between governments and civil society that will carry the fight against racism forward.’
The process leading up to WCAR was a difficult one, with States failing to agree on a range of issues. This disagreement was accompanied by a lack of willingness on all sides to compromise and reach consensus. Negotiations totalling approximately ten weeks were held in Geneva between March and August 2001 to prepare a draft Declaration and Programme of Action for WCAR. Despite this, States went to Durban with less than one quarter of the text agreed. Progress in Durban continued in this mould. The USA and Israel walked out of the conference due to continued disagreement on issues relating to Zionism and Palestine. By its mid-point the conference appeared to be on the verge of collapse with no movement towards agreement on key issues. Agreement was only reached in the night after the scheduled close of the conference. Disagreements on the placement of agreed text then prevented the finalisation of the Durban Declaration (‘the Declaration’) and Programme of Action (‘POA’) until 2 January 2002 – some four months after the conference.
These difficulties impacted significantly on the consideration of issues relating to Indigenous peoples in Durban in two main ways. First, a bloc of western nations, led by Australia, had facilitated agreement among States on language concerning Indigenous peoples at the third Preparatory Committee meeting in Geneva in early August. As much of the remaining text of the documents had not even been considered, this prevented a re-opening of debate over the text relating to Indigenous peoples in Durban for much of the conference. This was despite the objections of Indigenous peoples to its discriminatory nature and the lack of consultation over the provisions. Second, the singular focus of the African nations and those of the Caribbean on the impact of slavery resulted in much debate about the impact of colonialism on Indigenous peoples being subsumed within the slavery issue.
Ultimately there are some positive aspects and some major limitations in the treatment of Indigenous issues in the Declaration and POA of WCAR. On the positive side, the Declaration states unequivocally that the full realisation by Indigenous peoples of their human rights and fundamental freedoms is indispensable for eliminating racism and that the full participation of Indigenous peoples in society, along with cultural pluralism, is essential for political and social stability. Accordingly, States express determination ‘to promote [Indigenous peoples’] full and equal enjoyment of civil, political, economic, social and cultural rights, as well as the benefits of sustainable development, while fully respecting their distinctive characteristics and their own initiatives’.
The Declaration also acknowledges, among other matters:
Unfortunately the strong declaratory statements contained in the Declaration are not matched by commitments in the POA, which is intended to detail the practical, action-oriented steps which must be taken. In relation to Indigenous issues, the commitments that it makes are ill defined and often qualified. It urges States, for example, to adopt or continue to apply constitutional, administrative, legislative, judicial and all necessary measures to promote, protect and ensure the enjoyment by Indigenous peoples of their rights. This is no more action-oriented than the declaratory statement in paragraph 41 of the Declaration discussed above. It is subjective in its application with no measurable outcomes.
One of the most positive factors in the WCAR documents is the emphasis it places on the adoption of a gendered approach to racism. In relation to Indigenous women the POA requests States adopt policies and give impetus to programmes in concert with Indigenous women with a view to:
Another highly significant and practical development in the POA is the apparent commitment of greater funding to Indigenous issues within the UN. The POA calls on States to ensure an adequate foundation for the future development of the Permanent Forum on Indigenous Issues and requests the UN to ensure that the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People is provided with all the necessary resources to fulfil his responsibilities.
The POA also calls for States to, among other things:
Despite the positive aspects, the main reaction of Indigenous peoples at WCAR to the Declaration and POA was negative. This was because the documents made only vague or qualified references to Indigenous rights and provide no recognition of the collective dimension of Indigenous peoples’ livelihood.
While the Declaration states that ‘Efforts are now being made to secure universal recognition for [human rights and fundamental freedoms of Indigenous peoples] in the negotiations on the Draft Declaration on the Rights of Indigenous Peoples’, at no stage does it provide any positive recognition that the ‘claims’ of Indigenous people through the Draft Declaration amount to existing rights or that they should be recognised. The POA does, however, urge States ‘to conclude negotiations on and approve as soon as possible the text of the Draft Declaration on the Rights of Indigenous Peoples’.
The Declaration also affirms that Indigenous peoples ‘are free and equal in dignity and rights and should not suffer any discrimination, particularly on the basis of their Indigenous origin and identity’ yet at the same time provides such recognition subject to ‘the principles of sovereignty and territorial integrity of States’. The Declaration includes the qualification that ‘the use of the term “Indigenous peoples” in the Declaration and Programme of Action ... is in the context of, and without prejudice to the outcome of, ongoing international negotiations on texts that specifically deal with this issue, and cannot be construed as having any implications as to rights under international law’. In other words, the WCAR documents do not provide any acknowledgement of the group rights of Indigenous peoples or the right to self-determination. While this text does not preclude such recognition in the future, it provided no immediate recognition.
The Indigenous Caucus considered these paragraphs to be discriminatory and noted that Indigenous peoples are the only group of people identified as victims of racism to have their identity qualified within the WCAR documents. The Indigenous Caucus stated in the plenary of WCAR that if States could not refer to Indigenous peoples in a non-discriminatory manner then they should remove all references to them in the Declaration and POA.
It is telling to compare the text of the finalised Durban documents with documents produced by Indigenous peoples in the lead up to Durban – most notably the Sydney Declaration of Indigenous peoples from Australia, New Zealand, Hawaii, the USA and Canada. This truly shows how sparingly the final documents reflect the aspirations of Indigenous peoples for the recognition of their human rights.
Overall the provisions of the WCAR documents relating to Indigenous issues offer some positive recognition, but little innovation. They tend to reflect existing approaches and go no further (and indeed in some instances regress) from existing human rights standards. States remain unwilling to recognise Indigenous peoples’ right to self-determination and the collective dimension of their livelihoods. Both of these are things that have been recognised by the UN human rights treaty committees for some time.
Ultimately there is little in the Declaration and POA to advance an Indigenous rights agenda, particularly the Draft Declaration on the Rights of Indigenous Peoples. The preamble of the Durban documents states that WCAR presented ‘a unique opportunity to consider the invaluable contributions of Indigenous peoples to political, economic, social, cultural and spiritual development throughout the world to our societies, as well as the challenges faced by them, including racism and racial discrimination’. On balance, this opportunity was not fully taken in Durban.
Darren Dick is the Director of the Social Justice Unit at the Human Rights and Equal Opportunity Commission and attended the World Conference Against Racism. This update is written in a personal capacity.
 The conference was preceded by a non-government organisations world conference in Durban, a world youth summit on racism in Durban and national human rights institutions conference in Johannesburg.
 See further: Commission on Human Rights Res 1997/74 (18 April 1997) and General Assembly Res 52/111 (12 December 1997).
 United Nations, World Conference Against Racism to open in Durban, South Africa on 31 August, Press Release (27 August 2001), www.unhchr.ch/huricane/huricane.nsf/(Symbol)/RD.918.En?OpenDocument. See also www.unhchr.ch/html/racism/00-objctv.html.
 For detailed information on the preparatory process see the report of the Preparatory Committee on its third session to the General Assembly: UN Doc A/CONF.189/PC.3/11 (27 August 2001).
 The final documents can be downloaded from the internet at www.unhchr.ch/html/racism/.
 Durban Declaration, paragraph 41.
 Ibid paragraph 40.
 Ibid paragraph 41.
 Ibid paragraph 14.
 Ibid paragraph 30.
 Ibid paragraph 40.
 Ibid paragraph 43.
 Ibid paragraphs 98-99.
 Programme of Action, paragraph 15.
 Ibid paragraphs 18, 50-53, 59 and 66.
 Ibid paragraph 18.
 Ibid paragraph 209.
 Ibid paragraph 204.
 Ibid paragraph 205.
 Ibid paragraphs 16 and 17.
 Ibid paragraph 15.
 Ibid paragraph 22.
 Ibid paragraph 22.
 Durban Declaration, paragraph 42.
 Programme of Action, paragraph 206.
 Durban Declaration, paragraph 39.
 Ibid paragraph 23.
 Ibid paragraph 24.
 UN Doc: A/CONF.189/PC.2/Misc.5, available at www.atsic.gov.au/issues/international/racism/contents.asp. See also Report of the Regional Conference of the Americas (Regional Conference of the Americas, Santiago, Chile, 5 - 7 December 2000) UN Doc A/CONF.189/PC.2/7.