Indigenous Law Bulletin
by Megan Davis
With the first United Nations (‘UN’) International Decade of the World’s Indigenous People (‘first decade’) completed, the examination of the achievements and outcomes has begun. The General Assembly approved a second International Decade of the World’s Indigenous People on 20 December 2004. The Secretary General has already commissioned and delivered a report into the outcomes of the first decade and the Secretariat of the Permanent Forum has made a request to indigenous peoples for submissions and ideas for developing a comprehensive Program of Action for this second International Decade. The relatively new Permanent Forum on Indigenous Issues is now in its fourth session and indigenous peoples have ostensibly established themselves as a formidable issue within the monolith of the United Nations. However there are murmurings that reveal a level of discomfort with indigenous peoples’ alliance with the United Nations. Indeed when Kofi Annan entreated to indigenous peoples at the opening of the Permanent Forum: ‘You have a home at the United Nations’, it should have immediately raised the suspicions of a peoples who had for a long time been politically astute, strategically savvy and wary of authority. This article provides a conspectus of the author’s concerns foregrounding indigenous peoples’ lead into the second decade.
There have been many achievements of the first decade. Some of the lesser known outcomes include the annual celebration by the United Nations of the International Day of the World’s Indigenous People; the organisation and facilitation by the Secretariat in Geneva of expert seminars on indigenous peoples and the media, higher education, sustainable development, natural resources, treaties, agreements and other constructive arrangements, and the administration of justice; and specific studies on indigenous peoples in areas such as permanent sovereignty over natural resources. Another key achievement of the first decade was the successful establishment of the Indigenous Fellowship Programme at the Office of the United Nations High Commissioner for Human Rights. There are estimates that there have been over 80 indigenous fellows from 37 countries educated through the UN program. The purpose of the Fellowship is to educate people from within communities about how to utilise and lobby within the UN system. The United Nations Voluntary Fund for Indigenous Populations is another achievement worthy of mention, having been established to assist indigenous peoples financially to attend the various UN meetings on indigenous peoples’ issues. Many Indigenous peoples have relied on this funding and, given the paucity of funding available now in Australia, particularly with the abolition of the Aboriginal and Torres Strait Islander Commission, the Fund (based in New York for the second decade) will become increasingly important in the second decade for those Indigenous peoples who wish to use the UN Indigenous mechanisms to complain about the actions of the Australian government in breach of its international obligations and bring to the attention of the international community the conduct of the Australian government.
The Permanent Forum is one of the most significant creations, given that it was a key objective of the program of activities for the International Decade of the World’s Indigenous People. The mandate of the Permanent Forum is to serve as an advisory body to the Economic and Social Council (‘ECOSOC’). The six areas it is mandated to consider are Indigenous peoples’ issues that relate to economic and social development, culture, the environment, education, health and human rights. Perhaps the stand-out achievement of the first decade has been, however, the establishment in 2001 by the Commission on Human Rights of the spectacularly popular position of Special Rapporteur on the situation of the human rights and fundamental freedoms of Indigenous people. The Special Rapporteur, Rodolfo Stavenhagen, is widely respected and has been effective in his mandate. The mandate is to gather, request, receive and exchange information and communications about violations of Indigenous peoples’ human rights. The Special Rapporteur is also authorised to make recommendations to the Commission on these violations of human rights as well as to make in situ visits. The Special Rapporteur has written a number of excellent quality reports, the most significant being on Indigenous peoples and the administration of justice. He has also made a number of country visits including to Guatemala and the Philippines in 2002, Mexico and Chile in 2003, and Canada and Columbia in 2004.
The Permanent Forum is ostensibly the jewel in the crown of Indigenous peoples’ achievements in international law and it is true that, on paper, the Permanent Forum is an impressive structure. The mandate of the Permanent Forum is to provide expert advice and recommendations on the six mandated Indigenous issues listed above to ECOSOC and also to programs, funds and agencies of the UN. The Permanent Forum is also charged with raising awareness and promoting the integration and coordination of activities related to Indigenous issues within the UN and preparing and disseminating information on Indigenous issues.
The Permanent Forum in practice has been spectacularly unimpressive. Criticisms that may be made at the Permanent Forum begin with the restrictive and limited mandate. Its limitations inform the immense popularity and enthusiasm for the Permanent Forum among states such as Australia and the United States. Its limited mandate must also be considered alongside the push for the abolition of the Working Group on Indigenous Populations (‘WGIP’) that has a standard-setting mandate and from which the United Nations Draft Declaration on the Rights of Indigenous People (‘Draft Declaration’) had its genesis. Standard-setting would all but disappear for Indigenous peoples within the UN with the cessation of the WGIP. Fortunately, it has had a reprieve for another year. Some Indigenous peoples are optimistic that once the Permanent Forum is established within the UN system, ECOSOC could be convinced to consider an amendment to the mandate of the Permanent Forum to include standard-setting. Again though, that is unlikely and those who argue that it is possible are naïve about the UN system and how it operates.
The Permanent Forum operates over the course of two weeks in New York. The idea of the forum is to be provided with drafted recommendations from Indigenous peoples that the members can shape into the form of a report and submit to ECOSOC. The forum has until now had significant teething problems in terms of Indigenous peoples’ perception of what the forum is and what it can do. Permanent Forum members have had a difficult task in extracting key recommendations from the voluminous interventions made by Indigenous peoples. Members then have the unenviable task of writing the report during the two-week sitting.
Unless you have attended a prior session it is difficult to garner how the forum actually runs, and the paucity of information about how the forum operates in practice is astounding. For example, if you haven’t attended it you wouldn’t know that only three of the mandated areas are considered in depth each year and the other three areas are only considered in a cursory manner; and then the areas of focus are rotated the following year. The theme of ‘Indigenous women’ at the third Permanent Forum was a farcical effort at substantively dealing with Indigenous women’s issues. Its discussion went on for less than a day with banal papers from UN organisations, agencies and UN ‘experts’ who delivered papers that were clearly pre-prepared papers for their specific agency, no doubt inserting ‘Indigenous women’ for the occasion of the Permanent Forum.
Lengthy speeches and tirades against states are irrelevant and should be eschewed in favour of neatly drafted recommendations. If there is excessive mention or criticism of a state in the report it will be remitted back to the Permanent Forum by ECOSOC for amendment. The status of recommendations was also unknown until 2004 when the progress of recommendations became available on the Permanent Forum website. The website is amateur at the best of times but the complicated and convoluted tables measuring the implementation of recommendations still leaves the reader somewhat uninformed of the actual substantive benefit of such recommendations and indeed the Permanent Forum.
The Permanent Forum operates in a confused and cumbersome manner. The meetings can be laboured with excessive prayers from Indigenous peoples and up until 2005 have struggled to run to schedule with members and participants regularly late. This is concerning because of the cost for many Indigenous peoples to attend the meeting in New York. Many Indigenous peoples cannot enter New York because of visa restrictions and the cost is exorbitant compared to Geneva, particularly accommodation in mid-town Manhattan. It is an expensive exercise for what is arguably five-star networking. By contrast, the side events organised for the two weeks are excellent and often more informative and educational than the actual meeting. The papers submitted by UN agencies, the Secretariat and governments are also interesting sources of information and in particular the papers being produced on Free, Prior and Informed consent are well researched and have been important reading for Indigenous peoples. The Permanent Forum is also not assisted by the uneven nature of its membership that is inconsistent in levels of expertise and competence. The South Pacific region has been fortunate to have the hardworking and brilliant Mililani Trask from Hawaii. The South Pacific region is also fortunate to have Professor Mick Dodson as Trask’s successor, who has a formidable reputation internationally among Indigenous peoples and is widely respected. This was reflected in his immediate election as Chairperson Rapporteur of the forum at the 2005 meeting. The uneven nature of the membership may have also informed the strong and cautious concern among Indigenous peoples at the 2004 UN Draft Declaration meeting that the Permanent Forum would be considered the supervisory body of the Draft Declaration.
It is true that the Permanent Forum may develop into something more constructive given its early days. Still, the changes being made to make it more effective seem to be coming from Indigenous peoples in the specific regions. In the South Pacific for example there is an excellent network of Indigenous peoples’ groups. Les Malezer of the Foundation for Aboriginal & Islander Research Action (‘FAIRA’) in particular has been excellent in his leadership abilities, organising the South Pacific caucus, and recently hosting a South Pacific forum in Brisbane intended to discuss and generate recommendations to be delivered later at the meeting in New York. This saves money for Indigenous groups so they do not have to physically attend New York, yet are able to participate in the formulation of recommendations. Les Malezer also importantly organised human rights training for participants from all over the South Pacific to coincide with the Permanent Forum consultation that was also attended by the South Pacific representative, Mick Dodson.
It is indeed unfashionable to criticise the Permanent Forum given that it is an Indigenous forum that Indigenous peoples lobbied for decades for and, indeed, that they now ostensibly share power in a forum with equal state numbers. Indeed there have been excellent and hardworking Indigenous peoples working in the Secretariat, for example John Scott of Australia. To stifle critique and dissent, however, is not helpful. The inevitable closure of the WGIP and the possible failure to negotiate a Draft Declaration on the Rights of Indigenous People would leave Indigenous peoples, after three decades of UN lobbying, with the Permanent Forum. It would seem that in that worse case scenario, Indigenous peoples would have been outwitted and outplayed by states.
The WGIP has been productive during the first decade and has examined a number of themes on Indigenous populations such as Indigenous peoples and the right to development, education, children and youth, intellectual property and the impact of globalisation. The Draft Declaration is a testament to its hard work and the utility of its standard-setting mandate. Many states now argue that with the ascent of the Permanent Forum, a working group is no longer necessary because the work is duplicated. This is not necessarily true. The Permanent Forum is not even close to producing some of the quality documents and research that the WGIP has produced during its time. It is true that the Permanent Forum is only in its early days and is perhaps more of an advocacy body for Indigenous peoples to the UN system; however the WGIP is lower down the UN hierarchy. It has the space in which Indigenous peoples can critique states through its review of developments mandate. It also has the powerful standard-setting mandate. As an example, this could prove particularly useful to Indigenous peoples in the area of intellectual property and traditional knowledge. If advocacy for Indigenous peoples’ rights is left to the World Intellectual Property Organisation, a specialised body of the UN with 182 member states, then Indigenous peoples will never succeed in improving protection for Indigenous knowledge that falls outside the scope of the western intellectual property framework. Many Indigenous peoples automatically herald the status of the Permanent Forum because it is a subsidiary body of ECOSOC and is ostensibly high in the UN hierarchy. However the WGIP cannot be eschewed simply on the basis of its lowly status; it may yet prove to be an important plank on what seems to be a sinking ship: recognition of Indigenous peoples’ rights in international law.
The Commission on Human Rights’ open-ended inter-sessional Working Group, elaborating a draft declaration on the rights of Indigenous peoples has provisionally adopted two articles in the ten sessions it has been active. The crux of the ongoing battle between Indigenous peoples and the states at the Draft Declaration working group is the most telling indicator about the state of affairs between Indigenous peoples and the state. People argue ad nauseam that the UN is a states body. Perhaps this is most evident when it comes to the drafting of the declaration on the rights of Indigenous peoples. Of course it doesn’t help that the Indigenous strategy and alliances at the Draft Declaration fell apart and that the ‘no change’ position of the Indigenous caucus became unrealistic and unsustainable. But Indigenous peoples continue to suffer the intellectual inconsistencies and flawed international law arguments of states that would not be tolerated in any other field. That’s because states continue to hold all the cards. It is not considered acceptable to critique the Permanent Forum, however to give it its due, it exists to ‘keep the bastards honest’; the bastards being the UN, not the states. And that’s the point. At a time when Indigenous peoples in countries like Australia desperately need international standards by which to hold their state accountable, focusing energies and money on ensuring the UN is accountable to Indigenous peoples and includes Indigenous peoples in their programs and funding is a diversion from more important work. For countries like Australia the benefits of the Permanent Forum (and indeed the same can be said of the Special Rapporteur) are marginal anyway given that many organisations like WHO for example cannot do work with Australia without Australia’s permission. It is true that for many developing countries in which UN work is already focused, the Permanent Forum is an excellent and effective body for these Indigenous peoples.
Australian Indigenous peoples’ best strategy is to focus money and energies toward the UN human rights supervisory bodies such as the Committee on the Elimination of Racial Discrimination and the Committee on the Rights of the Child. It is at these forums that Indigenous peoples are able to draw the world’s attention to the actions of their governments. This cannot be done at the Permanent Forum. The end of the Draft Declaration will be one of the most devastating developments for Indigenous peoples since their advocacy at the UN began; and a Draft Declaration will be more advantageous to Indigenous peoples than the Permanent Forum. We may have a home at the UN but we need real and substantive change in our real homes; within state borders. That is where human rights really matters. It is a sad day when Indigenous internationalism at the UN leads to a permanent forum in which we can network, make the odd recommendation and visit the Guggenheim, but substantively we still have no rights and no standards in international law. No wonder the Australian government is so agreeable to the Permanent Forum: up until now, we’ve been outwitted and outplayed.
Megan Davis, LLB BA (Australian Studies) UQ, Grad Dip Leg Prac, LLM (International Law), PhD Cand (Faculty of Law) ANU, is a Senior Research Fellow at the Jumbunna Indigenous House of Learning, University of Technology, Sydney. Megan is a member of the Ngiya Institute for Indigenous Law, Policy and Practice, was a United Nations Fellow in Geneva in 1999 and specialises in international law.
 The International Decade of the World's Indigenous People (1995-2004) was proclaimed by the General Assembly in its resolution 48/163 of 21 December 1993.
 General Assembly adopted resolution 59/174 on 20 December 2004.
 Report of the Secretary-General on the preliminary review by the Coordinator of the International Decade of the World's Indigenous People on the activities of the United Nations system in relation to the Decade <http://daccessdds.un.org/doc/UNDOC/GEN/N04/405/51/PDF/N0440551.pdf?OpenElement> at 20 June 2005,
Report of the Secretary-General on the preliminary review by the Coordinator of the International Decade of the World's Indigenous People on the activities of the United Nations system in relation to the Decade: Information received from the United Nations Secretariat <http://www.ohchr.org/english/issues/indigenous/docs/CRP_11.doc> at 13 June 2005.
 The author was a United Nations Fellow in 1999.
 General Assembly resolution 40/131.
 Establishment of a Permanent Forum on Indigenous Issues: Economic and Social Council Resolution 2000/22 <http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.RES.2000.22.En?Opendocument> at 13 June 2005.
 Commission on Human Rights resolution 2001/57 <http://ap.ohchr.org/documents/E/CHR/resolutions/E-CN_4-RES-2001-57.doc> at 13 June 2005.
 Mission to Guatemala <http://daccessdds.un.org/doc/UNDOC/GEN/G03/111/33/PDF/G0311133.pdf?OpenElement> at 20 June 2005.
 Mission to the Philippines <http://daccessdds.un.org/doc/UNDOC/GEN/G03/115/21/PDF/G0311521.pdf?OpenElement> at 20 June 2005.
 Mission to Canada <http://www.ohchr.org/english/bodies/chr/docs/61chr/E.CN.4.2005.88.Add.3.pdf> at 13 June 2005.
 Mission to Columbia <http://daccessdds.un.org/doc/UNDOC/GEN/G04/165/15/PDF/G0416515.pdf?OpenElement> at 20 June 2005.
 Database of Recommendations <http://unhq-appspub-01.un.org/desa/unspfii.nsf> at 13 June 2005.
 Report of the Working Group established in accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995 on its tenth session
<http://daccessdds.un.org/doc/UNDOC/GEN/G05/133/60/PDF/G0513360.pdf?OpenElement> at 20 June 2005.
 Established in 1995 in accordance with Commission on Human Rights resolution 1995/32 and the Economic and Social Council resolution 1995/32.
 World Health Organisation <http://www.who.int/en/> at 13 June 2005.