| Author: | Catherine J Iorns |
| Subjects: | Human rights law and legislation (Other articles) Indigenous peoples - legal status, laws (Other articles) |
| Issue: | Volume 1, Number 1 (1993) |
| Category: | Current Developments |
1. The Working Group on Indigenous Peoples
This time there were over 600 participants, including representatives of
States, of UN departments and agencies, of indigenous peoples and
organisations, of non-indigenous organisations, and individual scholars,
experts and other interested observers. This note briefly describes that
session and the matters that the Working Group considered.
Of all the agenda items, probably the most significant was the consideration of
the draft Declaration on the Rights of Indigenous Peoples. Consideration of the
draft Declaration began on the second day with general statements from various
participants. In the afternoon the Working Group members and the indigenous
representatives met separately, the members in private and the indigenous
representatives in the official room (with the service of the interpreters). But
all met with the same purpose: in order to consider the draft that the
Chairperson of the Group, Erica-Irene Daes, had produced in June.(1) This
procedure was repeated on the third day. In addition, because there were so
many general statements to be heard, the Working Group met again in the evening
to finish the general statements and begin the Second Reading of the draft. On
the fourth day the Working Group members delivered a further draft of the
Declaration, which was to serve as the basis of discussion for the rest of the
meeting.(2) On the fourth day, discussion of the draft got as far as Article 3.
In the morning of the fifth day, Articles 4 to 9 were discussed. As there were
a further 33 articles in the draft yet to be discussed, it was decided
that the indigenous representatives and the Working Group members should again
meet separately in the afternoon in order to enable the indigenous
representatives to decide, among themselves (again, with the services of the
interpreters), what particular provisions they wanted to focus on, so as to
eliminate some articles from extensive consideration and thereby speed up the
process.
At the beginning of the second week the indigenous peoples presented their
suggestions in the morning and, after discussion of the remaining articles in
the afternoon and on the seventh day, the meeting managed to finish
consideration of the draft.(3)
The draft Declaration, not surprisingly, received the most attention during the
session, with six of the ten days devoted to its consideration. While this was
a large proportion of the total meeting time, it was not large given the size
of the draft Declaration and the concerns participants had with it. As a
result, consideration was in fact fairly hurried, especially toward the end of
that time, because of the consciousness that there were other things on the
agenda still to be considered. Participants were nonetheless able to make many comments on the
draft, and enough focused comments were made such that the Working Group felt
able to complete their re-drafting in private after the close of the session. The
Working Group was thus able to submit its final Draft Declaration to the
Sub-Commission on Prevention of Discrimination and Protection of Minorities at
its 45th meeting in August.(4) With this submission the Draft Declaration has
left the Working Group such that it will not be considered in future Working
Group meetings.(5)
The second major item on the agenda was the Review of Developments. Under this
item participants presented statements on the situations of indigenous peoples
around the world, particularly in relation to developments, good and bad, that
had occurred in the last year. This is another agenda item that has
traditionally taken a large amount of time at Working Group sessions because of
the importance that indigenous peoples, in particular, place on the
presentation of such information in such a public forum. Thus, while virtually
all statements are available in writing, speakers are also allotted time to
speak on the floor to present them.(6) The matters that are covered by the statements are wide, including
a coverage of most categories of human rights violations. For a fairly detailed
discussion of the matters discussed see the official Report of the 11th Session,
which provides a much better organised presentation of the matters covered than
previous reports have had.(7)
The hearing of statements on Review of Developments took 2 1/2 days, leaving
only the afternoon of the last day for consideration of the remaining six
agenda items. In this afternoon Working Group member Miguel Alfonso-Martinez
presented his First Progress Report on the Study of Treaties, Agreements and
Other Constructive Arrangements between States and Indigenous Peoples.(8) This Progress
Report describes the research he has undertaken so far, discusses some
anthropological and historical issues relevant to the study, and relates some
of the history of the first encounters between indigenous peoples and European
states. It then delineates the five types of situations that Special Rapporteur
Alfonso Martinez will study in depth and outlines some of his findings to date
in these areas. These five situations are: (i) treaties concluded between
States and indigenous peoples; (ii) agreements made between States or other
entities and indigenous peoples; (iii) other constructive arrangements arrived
at with indigenous peoples; (iv) treaties concluded between States containing
provisions affecting indigenous peoples as third parties; and (v) situations
involving indigenous peoples who are not covered by any of the above-mentioned
instruments. Importantly, one of the primary case-studies selected by Special
Rapporteur Alfonso Martinez under the fifth heading is that of Aboriginal
peoples in Australia.(9) Alfonso
Martinez repeated his earlier request that indigenous peoples fill in a copy of
his questionnaire on the history of their situations and send it to him, in
order to help him in his study. Any Aboriginal peoples who have not done so can
find his questionnaire attached as an Annex to the Report of the Working
Group's tenth session.(10)
Participants at the meeting were generally supportive of the Study, with many
making suggestions for areas that Mr. Alfonso Martinez might include for
examination in more detail. The Special Rapporteur intends to submit a second
progress report at the next (twelfth) session of the Working Group.
Another study submitted to the meeting for consideration was that written by
the Chairperson, Erica-Irene Daes: Study on the Cultural and Intellectual
Property of Indigenous Peoples.(11) This study was also well-received. In
addition, Maori representatives presented the meeting with results from the
First International Conference on Cultural and Intellectual Property Rights of
Indigenous Peoples, including a Declaration on Cultural and Intellectual
Property Rights of Indigenous Peoples, referred to as the Maatatua Declaration.
Ms Daes agreed to attach the Maatatua Declaration to her study.
The next agenda item to be considered was the progress to date of the
International Year for the World's Indigenous People. The general consensus was
that, while the profile of the Year and activities undertaken in accordance
with it was high in some individual countries, it "so far was the poorest
and smallest event of its kind in the history of the United Nations."(12) This
disappointing result was put down to the low level of funding and publicity
accorded to the Year at the international level. Participants were urged to
make the rest of the Year a success that could make up for the lack of
activities so far. States were particularly urged to contribute money to the
Voluntary Fund for the International Year so that it could fund more projects
by indigenous peoples.
The outcome of the World Conference on Human Rights was next discussed, with a
focus on the outcomes particularly relevant to indigenous peoples. In this
respect there were several positive recommendations that came out of the
Conference, and which are listed in the Programme of Action.(13) These include:
(i) that States ensure the full and free participation of indigenous people
(sic) in all aspects of society (para. 31); (ii) that the General Assembly
proclaim an international decade for the world's indigenous people (sic), to
begin from January 1994 (para. 32); and (iii) that the UN assist States with
programmes that would be of direct benefit to indigenous people, as well as provide
the Center for Human Rights with increased human and financial resources (para.
30). However, the positive aspects of these provisions are offset by the poor
substantive statement in paragraph 20 of the Vienna Declaration itself. While
paragraph 20 appears to make a strong statement recognising the specific rights
of indigenous people(s), States insisted on referring to indigenous peoples as
indigenous "people" in an attempt to categorise them as a collection
of persons rather than of peoples. And this was
despite efforts of indigenous representatives and others to keep the
"s" in the Declaration. The motive behind the reference to
"people" was a desire to deny that indigenous peoples had a separate
right of self-determination as accorded to "peoples" in the
International Covenants on human rights. Indigenous representatives objected
strongly to the States' tactic and were thus critical of the Declaration as a
whole.
The next item to be discussed was the future role of the Working Group.(14) This
need arose primarily because it was expected that the Working Group would
complete its work on the draft Declaration and because of suggestions that a
permanent forum for indigenous peoples with a wider mandate be established. There
was general support among State and indigenous representatives for the
establishment of a permanent forum, for the widening of the Group's mandate,
and for the proclamation of an international decade for the world's indigenous
peoples. There was also general support for increasing the resources given to
the U.N. Center for Human Rights. In relation to the permanent forum, the Maori
and Mikmaq representatives jointly proposed a UN council of indigenous peoples
(without state representatives) which would report to the Economic and Social
Council and the General Assembly.
Under the final agenda item, Other Matters, the participants discussed the working
of the UN Voluntary Fund and other funding mechanisms enabling indigenous
representatives to attend the Working Group sessions, and noted (inter alia)
various past and future meetings and seminars on indigenous peoples.
In conclusion, it was a full and tiring two weeks and will be remembered as
being at a turning point in the history of the Working Group: the end of the
Working Group's consideration of the draft declaration and possibly the
beginning of a permanent UN forum on indigenous peoples.
NOTES
1. Note that the official name of the Working Group is the Working Group
on Indigenous Populations. However, the use of "populations" is
offensive to indigenous peoples, who consider themselves more than simply ad
hoc collections of individuals. Moreover, the UN's use of
"populations" is for political reasons associated with the
non-recognition of the international legal right to self-determination for
indigenous peoples. I support the use of the term "peoples" when
referring to indigenous peoples and thus refer to the Working Group as such.
2. Draft Declaration on the Rights of Indigenous Peoples -- Revised working
paper submitted by the Chairperson-Rapporteur, Ms Erica-Irene Daes, UN Doc. E/CN.4/Sub.2/1993/26,
8 June 1993.
3. Draft Declaration on the Rights of
Indigenous Peoples, as Revised by the Members of the Working Group on
Indigenous Peoples, UN Doc. E/CN.4/Sub.2/AC.4/1993/CRP.4, 22 July 1993.
4. My comments on the substance of the Draft Declaration itself appear as a
separate article in this issue. A summary version also appears in the
Aboriginal Law Bulletin, October 1993.
5. See the [accompanying article] on the Draft Declaration itself for a
description of the future process that the draft must follow before it can
become a formal UN Declaration.
6. Report of the Working Group on Indigenous Peoples on its Eleventh Session,
UN Doc. E/CN.4/Sub.2/1993/29, 23 August 1993, at para. 210.
7. Although, because of the large number of speakers -- 126 in all -- the time
allotted at this session was only five minutes each.
8. Report of the Working Group on Indigenous Peoples on its 11th Session, supra
note 6, at paras. 76-145.
9. UN Doc. E/CN.4/Sub.2/1992/32, 25 August 1992.
10. Ibid, at para. 362.
11. Report of the Working Group on Indigenous Peoples on its Tenth Session, UN
Doc. E/CN.4/Sub.2/1992/33, 20 August 1992, Annex II .
12. UN Doc. E/CN.4/Sub.2/1993/ 28.
13. Report of the Working Group on its Eleventh Session, supra note 6, at para
177.
14. Vienna Declaration and Programme of Action, UN Doc. A/CONF.157/23, 12 July
1993, at paras. 28-32.
15. The document presented for the meeting's consideration was Future Role of
the Working Group - Note by the Chairperson-Rapporteur of the Working Group on
Indigenous Peoples, UN Doc. E/CN.4/Sub.2/AC.4/1993/8, 15 July 1993.