Indigenous Law Bulletin
by Rhiannon Morgan
From 22-26 July 2002, the United Nations Working Group on Indigenous Populations (the ‘Working Group’ or ‘WGIP’) held its twentieth session in Geneva. Established in 1982 as a sub-organ of the then Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, the session represented its twentieth anniversary. Far from being a moment of celebration, however, the session was marked by a considerable amount of insecurity. This insecurity has been brought about by fears that either this or the next session could be the last, for the Working Group is under threat. The threat is from some UN Member States who consider that the UN does not have the resources to sustain more than two mechanisms dealing with Indigenous peoples. These states argue that the WGIP has become redundant since the establishment of the Permanent Forum on Indigenous Issues (the ‘Permanent Forum’), which held its first session in New York in May 2002, and the appointment in 2001 of the Special Rapporteur on the Human Rights and Fundamental Freedoms of Indigenous People (the ‘Special Rapporteur’). In this article, however, I argue that the WGIP still has a valuable role to play and its termination would be a mistake.
Since its establishment, the WGIP has served as a focal point for the promotion and protection of the rights of Indigenous peoples. Its achievements are considerable. Not only is the Draft Declaration on the Rights of Indigenous Peoples (the ‘Draft Declaration’) a product of the Working Group, but out of the WGIP have also come the ideas for the 1993 Year of the World’s Indigenous People, the 1995-2004 Decade of the World’s Indigenous People, the UN Voluntary Fund for Indigenous Populations, and the UN Indigenous Fellowship Programme. It has also generated studies, reports and working papers on issues of particular importance to Indigenous peoples. These include a study on treaties, agreements and other constructive arrangements between Indigenous peoples and states by Special Rapporteur Miguel Alfonso Martinez, and a study on cultural and intellectual property by longstanding Chairperson and Special Rapporteur Erica-Irene Daes. Its other activities include expert seminars on the environment and self-government. These and other initiatives have succeeded in raising the profile of Indigenous peoples internationally, and in bringing Indigenous issues to the forefront of the UN human rights agenda. To a greater degree they reflect the direct input of Indigenous delegates themselves, who have enjoyed meaningful participation in the sessions of the Working Group. Indeed, in a departure from previous UN practice, the WGIP not only opened its doors to organisations and representatives of Indigenous peoples regardless of whether or not they had consultative status with the Economic and Social Council (the ‘ECOSOC’), but also adopted at the outset a flexible and open process that has enabled participants to contribute directly to proceedings. This was particularly important when it came to the drafting of the Draft Declaration, and resulted in a unique situation in which the subjects of the text took part in its formulation.
Arguably, it is not enough to point to past achievements in order to justify the continuation of the Working Group. As Indigenous participants at the twentieth session of the WGIP were at pains to point out, however, there is much that the WGIP has yet to achieve, particularly in the area of standard setting. The Draft Declaration, though it is undoubtedly a comprehensive instrument, has not exhausted the task of standard setting. New standards or guidelines are needed in relation to a range of issues impacting Indigenous peoples. For example, presently there is no specific protection in the areas of traditional knowledge or intellectual property, nor are there standards for guiding the activities of multinational corporations and the private sector.
Furthermore, it is only the WGIP that has the mandate to undertake such standard setting activities. The Permanent Forum is mandated to advise the ECOSOC on issues pertaining to Indigenous peoples, to coordinate the work of UN agencies, and to disseminate information relating to Indigenous issues. It has no mandate to set new standards in the area of Indigenous rights. Neither does the recently appointed Special Rapporteur, Rodolfo Stavenhagen, whose role is to gather information and make recommendations on how to prevent and remedy violations of the rights of Indigenous peoples. Unless the function of standard setting is given to the Permanent Forum or the Special Rapporteur, the Working Group should not be abolished, and even then it could be argued that this should not be allowed to occur until these newer organisations have reached a stage of maturity. As WGIP expert member Francoise Hampson has pointed out, it poses too great a risk to replace a mature body of 20 years with recently established mechanisms.
Standard setting is not the only part of the WGIP mandate that is unique. The WGIP is also authorised to review developments pertaining to the promotion and protection of the human rights and fundamental freedoms of Indigenous populations, which is a mandate that belongs to the WGIP alone. This makes the Working Group the only UN body charged with reviewing state activities in relation to Indigenous peoples. The Working Group has approached this mandate generally and thematically. For example, at the twentieth session of the WGIP participants delivered general statements as well as thematic statements relating to Indigenous peoples and the right to development, including participation in development affecting them. Themes discussed in previous years have included the environment, land and sustainable development, and the right to education and language. The Working Group is not mandated to act upon grievances brought under these items. Despite early hopes that the WGIP would evolve into some kind of peace building and mediation programme between states and Indigenous peoples it has no such powers.
Although some lament the lack of practical follow-up, the review of developments is an important exercise enabling Indigenous representatives to tell their stories to the international community. This has been especially important for Indigenous peoples who cannot tell their stories at home for fear of retaliation. Its popularity with Indigenous peoples from all corners of the globe is clear from the increasing number of speakers that participate in this exercise each year.
The practice of ‘storytelling’ has had many a positive effect. For one thing, it has played an important role in strengthening a sense of a collective Indigenous identity and solidarity. As expressed by Les Malezer of the Foundation for Aboriginal and Islander Research Action, ‘here we have been able to identify as a common force, despite our complex societies and differences’. More importantly the testimonies that have been generated have played an essential role in raising consciousness of the plight of Indigenous peoples, and in doing so have contributed to legal and social change. In particular, hearing the ‘real-life’ experiences of Indigenous peoples assisted in the formulation of the Draft Declaration, leaving little doubt in the minds of the WGIP experts who prepared the text of the need for a comprehensive scheme of protection for Indigenous peoples. Until the Draft Declaration has been adopted by the General Assembly these at times graphic stories can continue to influence its further elaboration. Furthermore, until violations of the human rights of the world’s 300 million plus Indigenous peoples have ceased this element of the WGIP mandate cannot be outlived.
In the preceding paragraphs I have outlined some of the reasons why the mandate of the WGIP is so important for Indigenous peoples. It could be argued, however, that the value of the Working Group goes beyond its written mandate or as expressed by Mick Dodson, the WGIP ‘has come to play a far more extensive role than its mandate would suggest’. The Working Group also constitutes the largest annual gathering of Indigenous peoples anywhere in the world. Its meetings are attended by ever increasing numbers of Indigenous peoples’ representatives as well as their supporters from civil society, academics and others. There they exchange information, coordinate activities and develop caucus positions and generally engage in network activities. In this respect, the WGIP serves as a kind of annual Indigenous peoples’ convention or as Erica Daes has expressed it, the ‘Working Group has become the international organisation of Indigenous peoples’. It would be a grave misfortune if Indigenous peoples were to lose this regular meeting place. That is not to say that Indigenous peoples do not or cannot also meet independently of the Working Group but simply that the WGIP currently forms one of the largest and most important meeting places on the Indigenous calendar of events. It is also one of the most inclusive, for as mentioned above, since its inception the WGIP has favoured open accreditation procedures. This has meant that the Working Group has always had a grassroots presence.
Whether or not the Permanent Forum will also be able to nurture such a grassroots presence is uncertain. Although the Forum has adopted similar accreditation procedures to the WGIP its location in New York is likely to create some difficulties for potential participants. Visa requirements for the United States are especially stringent, including checks of the financial status of visa applicants. The representatives of Indigenous peoples, who are some of the poorest peoples in the world, do not always meet the requirements. This applies especially to African Indigenous peoples, and indeed, at the twentieth session WGIP expert member Judge Guisse expressed concern that discontinuance of the WGIP could leave the Indigenous peoples of Africa ‘orphaned in the UN system’. This is a serious concern, and one that must also be considered in any review of existing mechanisms intended to rationalise human rights work within the UN system.
The WGIP has achieved much in its 20 years of life, including the creation of the first collective rights instrument in UN history. In spite of this the Working Group is under threat and there is a real risk that it will be abolished. There is, however, a convincing case to be made for its continuation, central to which is the fact that there is still so much more work for the Working Group to do. Its continued existence can be justified on account of the ongoing need for both standard setting and a review of developments, which are the responsibility of no other body in the UN system. Neither the Permanent Forum nor the Special Rapporteur is authorised to undertake these important activities. There is thus no duplication or antagonism between the different mechanisms, which ideally should be allowed to work together and to complement one another. Indeed, if the UN is to find solutions to the problems faced by the world’s Indigenous peoples, they are most likely to be arrived at through the concerted efforts of the existing UN mechanisms relevant to Indigenous peoples and not through the cessation of one of the most valuable of those mechanisms. The decision, however, is in the hands of those in the Commission on Human Rights and of the ECOSOC. Whether these bodies will consider all the factors in their decision making, including the important role that the WGIP plays in the operation of the Indigenous movement and the attachment that Indigenous delegates have developed for the Working Group is not certain. If they do, they surely must recognise the need to maintain the WGIP.
Rhiannon Morgan is a doctoral candidate (Sociology) at the Human Rights Centre, University of Essex (UK). Her research focuses on the International Indigenous movement and its impact on international institutions, with particular emphasis on the United Nations.
 The WGIP was established by ECOSOC Resolution 1982/34, 7 May 1982. It is a sub-organ of the Sub-Commission, which means that it is located at the lowest level of the UN human rights hierarchy. It is composed of five independent experts elected with due regard to regional distribution from the Sub-Commission. In 2002 these experts were Mr Miguel Alfonso Martinez (Cuba), Ms Françoise Hampson (UK), Judge El-Hadji Guisse (Senegal), Mr Yozo Yokota (Japan) and Ms Julia Motoc (Romania).
 The Sub-Commission revised its name in 1999. It is now the Sub-Commission on the Promotion and Protection of Human Rights.
 In 1994 the WGIP completed its work on the Draft Declaration and transmitted the document to the Sub- Commission, which unanimously accepted the document as received, and submitted it to the Commission on Human Rights. The Commission, unable to accept the document without changes, established the Open-Ended Inter-Sessional Working Group on the Draft Declaration on the Rights of Indigenous Peoples (‘WGDD’) to review and advise it on the proposed instrument. Some eight years later, the document is still before the WGDD, its provisions disappeared under an ocean of brackets.
 Study on treaties, agreements and other constructive arrangements between States and Indigenous populations, UN Doc E/CN 4/Sub 2/1999/20.
 Study on the protection of the cultural and intellectual property of Indigenous peoples, UN Doc E/CN 4/Sub 2/1993/28. Other initiatives include the Working paper on Indigenous people and their relationship to land, UN Doc E/CN 4/Sub 2/2000/25; the Working paper on the concept of Indigenous peoples, UN Doc E/CN 4/Sub 2/AC 4/1996/2; and the Study on the protection of the heritage of Indigenous people, UN Doc E/CN 4/Sub 2/1995/26.
 See the Report of the United Nations Technical Conference on practical experience in the realisation of environmentally sound self-development of Indigenous peoples, UN Doc E/CN 4/Sub 2/1992/31 and the Report of the meeting of experts to review the experience of countries in the operation of schemes of internal self-government for Indigenous peoples, UN Doc E/CN 4/Sub 2/1992/42.
 ECOSOC Resolution 2000/22, 28 July 2000.
 Commission on Human Rights Resolution 2001/57, 24 April 2001.
 Statement to the twentieth session of the WGIP, 23 July 2002.
 Report of the Working Group on Indigenous Populations on its fifteenth session, UN Doc E/CN 4/Sub 2/1997/14.
 Report of the Working Group on Indigenous Populations on its sixteenth session, UN Doc E/CN 4/Sub 2/1998/16.
 The WGIP has occasionally used its offices to intervene directly in a number of urgent situations around the world with at least some positive influence, including in Guatemala and Canada. Such action, however, is strictly speaking outside the mandate of the WGIP.
 Statement to the twentieth session of the WGIP, 23 July 2002.
 Mick Dodson, ‘Comment’ in Sarah Pritchard (ed), Indigenous Peoples, the United Nations and Human Rights (1998) 63.
 Opening statement to the nineteenth session of the WGIP, 23 July 2002.
 Statement to the twentieth session of the WGIP, 24 July 2002.