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Davis, Megan --- "The United Nations Draft Declaration 2002" [2002] IndigLawB 22; (2002) 5(16) Indigenous Law Bulletin 6

The United Nations Draft Declaration 2002

by Megan Davis

The seventh session of the Working Group of the Commission on Human Rights (‘the working group’) on the United Nations Draft Declaration on the Rights of Indigenous Peoples (‘the Draft Declaration’) was held in Geneva during late January and early February 2002.[1] The 2002 Australian delegation was represented by the Aboriginal Torres Strait Islander Commission (‘ATSIC’), the National Secretariat of Torres Strait Islander Organisations, National Aboriginal Islander Legal Service Secretariat (‘NAILSS’), and the Foundation of Aboriginal Islander Research Action (‘FAIRA’).

The Draft Declaration is the result of years of work by the United Nations Working Group on Indigenous People (‘WGIP’) in close consultation with Indigenous people. WGIP mandate was to look at developments pertaining to the human rights of Indigenous populations and to give attention to the evolution of standards concerning such rights.[2] The WGIP then adopted a text in 1993. In 1994 the WGIP’s parent body, the Sub-Commission on Prevention of Discrimination and Protection of Minorities approved the text. As a result of this the Commission on Human Rights established an open-ended inter-sessional working group in 1995 with the purpose of elaborating a Declaration, in consideration of the text approved by the WGIP and Sub-Commission. This year was the seventh session. This paper aims to provide a general overview and critique of the process and outcomes of this session.

The Process

From the outset the debate over the Programme of Work commenced with similar controversy to past working groups. As in other years the foundation of this controversy is the objection by Indigenous peoples of a perceived misuse of allocated United Nations (‘UN’) meeting time for informal consultations of states. These informal consultations involve the drafting of ‘non-papers’ which are in effect creating an entirely alternative text to the original Draft Declaration text. These informal consultations do not allow for the full participation of Indigenous peoples. The non-papers that are drafted by states are distributed hours before debate with Indigenous participants on the specific article is due to begin. The non-paper substantially affects the nature of the debate. While this is not unusual practice for states at UN meetings, it is problematic for Indigenous people, who invest a great deal of money in attending the meetings and come prepared to discuss the articles as they are set by a meeting 12 months earlier. More often than not, the non-paper is distributed in English and has not been translated into the official languages of the UN. It requires Indigenous people to translate as well as respond to the non-papers with limited time and resources. Such methodology is frustrating Indigenous participation at the working group.

While states continued with this method of working this year they did extend an invitation to Indigenous participants to attend the informal consultations. They also allocated a period of 15 minutes for questions from Indigenous people. This invitation from the states was met with deep suspicion and considerable debate among the Indigenous caucus. The official decision of the caucus was that Indigenous people would not attend the informal consultations. It was argued that attending the meetings would sanction the informal consultations of states. It was also considered that the allocated 15 minutes was too minimal for such important and complex deliberations. However, some Indigenous participants did choose to attend the consultations.

There was also considerable controversy caused by the early departure of the Chair of the working group. Mr Luis Enrique Chavez of Peru had been recalled to his country for diplomatic commitments. There was great concern over his decision to continue overseeing the drafting and writing of the official report from Peru despite his absence from the meeting. Many Indigenous people felt that he should have relinquished his role as the Chair. He was replaced in the second week by Mr Jose Valencia of Ecuador.

Programme of Work

The Programme of Work commenced with general debate on collective rights, land and natural resources, and then moved on to discussion of some of the articles of the Draft Declaration. On the issue of collective rights the Australian government stated that it was comfortable with the concept both in the domestic and international sphere. The following is a brief overview of the tenor of the debate of the some of the articles considered at the seventh session:

Article 6

Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and to full guarantees against genocide or any other act of violence, including the removal of indigenous children from their families and communities under any pretext.

In the discussion of Article 6, states distributed an alternative text to the original text, which they had drafted at their informal consultations. This became the main focus of debate. It altered the main text in numerous ways including replacing ‘full guarantees against genocide’ in Article 6 with ‘shall not be subjected to any act of genocide’. It also added to the end of ‘collective right to live in freedom, peace and security as distinct peoples’ the words ‘or if they choose, integrated with other inhabitants of the state’. This alternative text also proposed the deletion of the language ‘the removal of indigenous children from their families and communities under any pretext.’

Many Indigenous organisations, including ATSIC on behalf of NAILSS and FAIRA, argued that the inclusion of the phrase ‘shall not be subjected to any act of genocide’ would strongly diminish the text. It was also argued that to include ‘integrated with other inhabitants of the state’ was unnecessary. ATSIC argued that Article 6 of the Draft Declaration was intended to be an antidote to the past and continuing reality that Indigenous peoples, as collectivities, had been subject to forced assimilation, integration and the denial of the right to determine their own development.

Both the Navajo nation and ATSIC argued that the removal of the words ‘the removal of indigenous children from their families and communities under any pretext’ would seriously weaken the text. Indeed for ATSIC the language of the article was drafted specifically to recognise past practice in many Australia jurisdictions of forcibly removing Indigenous children, and stated that in Australia the Aboriginal Child Placement Principles had been developed to ensure that children are not removed from their communities. However the Australian government argued that the original text, which precludes separation of children from their families ‘under any pretext’, ignores the need at times for states to fulfil their obligation to protect the best interests of children.

Many states did make interventions stating that they accepted the original wording of the text. However some states argued that there is uncertainty as to the basis at international law of the collective right to live in freedom and peace, while others questioned the actual content of the rights to peace and security.

Article 7

Indigenous peoples have the collective and individual right not to be subject to ethnocide and cultural genocide, including the prevention of and redress for:
(a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or identities;
(b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;
(c) Any form of population transfer which has the aim or effect of violating or undermining any of their rights;
(d) Any form of assimilation or integration by other cultures or ways of life imposed on them by legislative, administrative or other measures;
(e) Any form of propaganda directed against them.

Many of the Indigenous representatives emphasised the importance of the inclusion of the term ‘cultural genocide’ in Article 7 in recognition of past and contemporary actions suffered by Indigenous peoples. Substantial interventions were made by Indigenous leaders looking at the extensive discussion and status of the prohibition on cultural genocide at international law. Indigenous representatives such as the Haudenosaunee from North America and the Bangladesh Indigenous Peoples Forum, argued it was important to include the term ‘cultural genocide’, and emphasised the unique experiences of Indigenous people in the dispossession of lands and territories. The government of Canada, however, was still concerned that the right to cultural integrity was unknown in international law, and noted that cultural genocide was not found in the Rome Statute of the International Criminal Court nor in its Elements of Crime.

Article 9

Indigenous peoples and individuals have the right to belong to an Indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No disadvantage of any kind may arise from the exercise of such a right.

While the United States government accepted the ‘right to belong’ as a sensitive but important right, many governments had reservations about the use of this term. Some argued that the ‘right to belong’ has no status in international law. For this reason some states like Canada, preferred the term ‘may belong’.

The Australian government argued that in relation to the ‘right to belong’ and the requirement that no disadvantage arise from such a right, there are limits to the extent that governments can protect against the adverse consequences of those people whose individual life choices include disadvantage. The Australia government used the example of people who choose to live in remote locations where equality of access to services cannot be guaranteed.

While the government of Guatemala addressed the importance of the inclusion of the word ‘nation’ and accepted the article as drafted, the Australian government expressed reservation about the term. It argued that the word ‘nation’ was not employed in our Indigenous legislation or public policy and was not a term traditionally associated with Indigenous peoples in Australia. The government felt that it would raise questions and expectations about territorial and constitutional integrity. Despite the Australia government’s reservations, many other states like Guatemala and New Zealand stated that the term had no effect at international law and did not have implications for the ‘nation-state’ as recognised at international law.

Article 10

Indigenous peoples shall not be forced from their lands or territories. No relocation shall take place without the free and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.

While many states like Finland and Norway accepted the original text as it is drafted, other states believed that this article should be clarified. The Australian government felt that it could not support the language as originally drafted because it did not account for the realities of the occasional need of governments to relocate people in their own interest or in the broader public interests of public health and safety, public order, public works or in times of armed conflict. The Canadian government agreed that there might be situations where removal was required but believed that the article should reflect that in those circumstances, consultation and just and fair compensation should be offered. The United States government position was similar to Australia and Canada in that there should be a window left open for the possibility of removal in times of disasters, emergencies and acquisition of land for public purpose. Indeed some states believed that it was not feasible to obtain the consent of Indigenous peoples prior to relocation in emergency circumstances. There was also discussion of using the term ‘arbitrarily’ instead of ‘forcibly’ as forcibly would preclude removal in times of emergency.

Outcomes of the Seventh Session

The structure and controversy of the meeting this year is not novel. For some years states have been conducting informal consultations during the official time allotted for the plenary by the UN. Indigenous peoples are aware that governments are drafting an entirely alternative text to the original one. What emerged clearly this year was the further entrenchment of these informal consultations, again with the full support and sanction of the Chair.

The progress of the Draft Declaration has been notoriously slow. This is generally attributed to the lack of political will and consensus among states. Many of the issues dealt with are extremely complex, particularly those related to sovereignty, land and resources, and collective rights. This complexity flows from the challenge by Indigenous people to dominant, accepted notions at international law of Western concepts of individual rights, and rights to land and natural resources.

This year some select Indigenous groups, without the consent of the Indigenous caucus, again made an intervention indicating their willingness to negotiate on aspects of the text based upon the Dodson principles. At the 1998 working group, Mick Dodson, as a representative of ATSIC, had proposed criteria that would have to be met if any changes were to be seriously considered. The first principle was the high presumption as to the integrity of the current text. The second was conformity with the principle of equality, the principle of non-discrimination, and the absolute prohibition of racial discrimination.[3] The Chair did not appear to have heard the intervention and made no comment despite his constant encouragement of both states and Indigenous participants to negotiate and make some progress on the text.

Despite this attempt by some Indigenous groups to open up to negotiations, once again no progress was made on the text. Progress remains slow and almost deliberately hindered. Meanwhile, the progress on an alternative text drafted by states continues rapidly without transparency or consultation with Indigenous people. Indeed the non-papers continue to be annexed to the official UN report.

Conclusion

Despite concerns of Indigenous peoples, the process surrounding the Draft Declaration remains both contentious and unsettled. States are free to draft a text that will reflect their major objections. Such a text will dramatically water down and render nugatory much of the meaning and intent of the original text: A UN text that was written with the involved consultation and negotiation of the Indigenous peoples of the world.

Megan Davis is Waka Waka lawyer from South East Queensland. She is currently Director of the Bill of Rights Project at the University of New South Wales Gilbert & Tobin Centre of Public Law. Megan and Dr Sarah Pritchard were the legal advisors to ATSIC at the working group session in Geneva.


[1] For the Draft Declaration on the rights of Indigenous peoples see Sub-Commission resolutions E/CN.4/1995/2, E/CN.4/Sub.2/1994/56, 28 October 1994. The report of the seventh session was not released at the time of publication. The sixth session report is available, E/CN.4/2001/85.

[2] ECOSOC resolution 1982/34, 7 May 1982.

[3] For excellent discussion of this see Dr Sarah Pritchard, Setting International Standards: An Analysis of the United Nations Declaration on the Rights of Indigenous Peoples and the first six sessions of the Commission on Human Rights Working Group (3rd ed, 2001).


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