Draft Report of the Second Session of the Intersessional Working Group on a Draft Declaration - 1 November 1996
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DOCUMENT: WGRPT-2.TXT
U N I T E D N A T I O N S
FOR PARTICIPANTS ONLY
E/CN.4/1996/WG.15/CRP.7
1 November 1996
ENGLISH ONLY
GE.96-14197
DRAFT REPORT OF THE SECOND SESSION OF THE WORKING GROUP
ESTABLISHED IN ACCORDANCE WITH COMMISSION ON HUMAN RIGHTS
RESOLUTION 1995/32 OF 3 MARCH 1995
Chairperson-Rapporteur: Mr. Jose Urrutia (Peru)
ESTABLISHMENT OF THE WORKING GROUP
1. By resolution 1995/32 of 3 March 1995 the Commission on
Human Rights decided to establish an open-ended inter-
sessional working group of the Commission on Human Rights
with the sole purpose of elaborating a draft declaration,
considering the draft contained in the annex to resolution
1994/45 of 26 August 1994 of the Sub-Commission on
Prevention of Discrimination and Protection of Minorities,
entitled draft "United Nations declaration on the rights of
indigenous peoples" for consideration and adoption by the
General Assembly within the International Decade of the
World's Indigenous People. this decision was endorsed by the
Economic and Social Council in its resolution 1995/32 of 25
July 1995.
2. The Working Group held ... meetings during the period 21
October - 1 November 1996. A total of .... people attended
the Working Group, including representatives of ....
Governments and .... indigenous and non-governmental
organizations.
3. This report is solely a record of the debate and does not
imply acceptance of the usage of either the expression
"indigenous peoples" or "indigenous people". In this report
both are used without prejudice to the positions of
particular delegations, where divergences of approach
remain.
4. The Working Group was opened by a representative of the
High Commissioner for Human Rights/Centre for Human Rights
on behalf of the High Commissioner for Human Rights. It was
reported that, in accordance with the procedures established
by the Commission on Human Rights in its resolution 1995/32,
a further 28 organizations of indigenous people had been
accredited by the Economic and Social Council, bringing the
total to 106.
5. At its first meeting, the Working Group unanimously re-
elected Mr. Jose Urrutia (Peru) as its Chairperson-
Rapporteur.
ORGANIZATION OF WORK
6. During the second meeting the provisional agenda was
adopted. At the third meeting the agenda was amended by
including a fifth item entitled "Other matters".
7. With regard to the organization of work, an indigenous
representative read a statement, agreed upon by the caucus
of indigenous peoples, calling for the immediate adoption of
the draft "declaration on the rights of indigenous peoples"
as adopted by the Sub-Commission without change, amendment
or deletion as being a statement of minimum standards. He
stated that all indigenous nations, peoples and
organizations present regarded the draft declaration as
adopted by the Sub-Commission as the minimum standards for
the promotion and protection of the fundamental rights of
indigenous peoples and called upon all participants to this
session to engage in a general debate on the fundamental
issues and concepts of the draft while clarifying that
indigenous peoples would not engage in a dialogue which
would dilute or change the draft. Furthermore, he requested
that there be a plenary consensus on a change of the
internal rules of procedure guiding the Working Group,
specifically providing for the equal and full participation
of indigenous peoples in its deliberations, including full
participation as partners in the decision-making authority
of the Working Group. He continued by stating that inherent
in this request is the recognition that the report of the
Working Group must be produced with the full involvement and
consent of indigenous peoples and, more importantly,
required that the draft declaration could only be
transmitted to the Commission on Human Rights with the full
and informed consent of indigenous peoples. He stated that
the report must formally request the amendment of Commission
on Human Rights resolution 1995/32 of 3 March 1995, to
ensure the full and equal participation of indigenous
peoples and nations in the Working Group. Finally, he
repeatedly requested that Government delegations respond to
the statement and the proposals therein.
8. The comprehensive nature of this statement was reflected
in a large number of statements of both regional groups of
indigenous organizations as well as individual indigenous
organizations in which support for the statement was
expressed and the proposals therein reiterated.
9. The representative of the Government of Australia stated
that participation of indigenous peoples was absolutely
fundamental to the process of elaborating a draft
declaration. Adoption of a declaration would be meaningless
if that process would not lead to an understanding on the
part of indigenous and non-indigenous peoples and
Governments of the contents of the draft and the reasoning
and necessity behind it. He stated that growing
international and national awareness of indigenous issues
had led to steady progress but that problems remained that
required further consultation and perhaps education. He
stated that the draft as adopted by the Sub-Commission was a
complex instrument that contained many issues that touch
upon matters of governmental jurisdiction and the position
of non-indigenous people in society. He continued by stating
that it was impossible for his Government at this stage to
consider the declaration as adopted by the Sub-Commission as
a whole and suggested that, at this point, comments on
specific articles be put forward as a way of providing
information and not to come to any conclusions. He concluded
by stating that, in practice, indigenous peoples participate
on an equal basis in the Working Group considering that the
declaration must have the support of indigenous peoples to
be successful and therefore urged participants to listen to
each other and appealed to all participants to work through
the text of the draft in a spirit of cooperation to avoid
derailment of the process.
10. The representative of the Government of Denmark stated
that his Government's position was clear in its support of
the draft as adopted by the Sub-Commission. He expressed the
wish to move forward considering that his Government
considered adoption by the General Assembly a matter of
urgency. He stated furthermore that proceeding without the
participation of indigenous peoples would be very
unfortunate and render the resulting declaration
meaningless. He said that ownership of the draft by all
participants could only be established through dialogue and
therefore urged the contributions of all participants in
this respect. Finally, he stated that, although the Working
Group is bound by its mandate and rules, it would be
conducive to interpret the rules as liberally as possible.
11. The representative of Canada reiterated Canada's
commitment to achieving the goal of a declaration that
reflects the unique place of indigenous people in the world;
is universal in application; promotes reconciliation and the
protection of indigenous rights; that works effectively
against discrimination; and provides clear and practical
guidance for the development of effective and harmonious
relationships between indigenous people and States. He
recalled that at the first session of the Working Group,
which he believed to have been a success and a landmark, it
was clearly established that the basis for the work would be
the "draft declaration on the rights of indigenous peoples"
and that the completed overview of the draft had
demonstrated broad support for the development of this
important human rights instrument and the need for careful
attention to its provision. He stated that the input of the
many organizations of indigenous people present would be
indispensable for developing a strong and durable
declaration and that, if the Working Group were to make
progress, it would be imperative that the full range of
positions be voiced and that States and organizations of
indigenous people alike must take up the challenge, and bear
responsibility for taking the Working Group significantly
closer to our goal.
12. The representative of Mexico stated that as far as her
delegation was concerned there were no easy or more
difficult articles. The delegation would follow the debate
and make proposals which would promote the rights of
indigenous people.
13. The representative of the Government of Norway stressed
that participation of indigenous organizations was
absolutely fundamental. He assured participants that Norway
wanted a strong declaration but that some provisions in the
draft adopted by the Sub-Commission needed further work.
While stating that amendment of the rules could only be done
by the Economic and Social Council, he recommended that the
rules be applied as flexibly as possible to assure real
cooperation and assured indigenous participants of Norway's
openness to dialogue and cooperation.
14. The representative of the Government of Chile said that
he could not imagine a process without the full
participation of indigenous peoples. He considered that it
was vital that the declaration be adopted before the end of
the International Decade of the World's Indigenous People
but that, in order to strengthen, not weaken, the draft some
modifications, clarifications and corrections were required
in certain articles.
15. The representative of the Government of Sweden stressed
the vital importance of the participation of indigenous
peoples in the Working Group and said that her Government
fully supports the aim of adopting the draft declaration
during the International Decade. The representative of the
Government of Bolivia stated that the Working Group must
continue its work and that indigenous peoples were welcome
to participate in line with Commission on Human Rights
resolution 1995/32 of 3 March 1995. He continued by saying
that the Working Group could not fail to hear the comments
of those most concerned. Furthermore, he stated that it
would be the governments that would approve the draft and
suggested that withdrawal of indigenous peoples from the
process would not be beneficial.
16. The representative of the Government of Fiji said that
failure to produce substantial results by the Working Group
would risk sending the wrong political signal to the world.
He stressed that cooperation and partnership between
governments and indigenous representatives would be needed
and that they both had grave responsibilities in this
respect. He stated that the participation of indigenous
peoples was fundamental to the draft declaration.
Furthermore, he said that Fiji would happily seek the
adoption of the draft as adopted by the Sub-Commission but
that other governments had not completed their review of the
draft, or fully addressed domestic constituencies on the
issue and appealed therefore to indigenous peoples too
recognise that governments do need further time before they
can adopt a more definitive position on the draft
declaration as a whole, and on individual provisions. He
also said that consultation should not lead to delay.
17. The representative of the Government of New Zealand
expressed the belief that it would not be possible to
resolve all the very difficult issues that had to be
addressed by the Working Group at the current all session
since the process towards consensus would take time and
involve negotiation and comprise on all parts. She said that
it was essential that the views and objectives of indigenous
people would continue to be heard in the Working Group. The
representative of the Government of the Ukraine stressed
that it was important to preserve the partnership between
participants and that while all interested parties could
provide their comments considering the mandate of the
Working Group, further constructive dialogue would benefit
all.
18. The representative of the Government of the United Sates
of America stated that his Government had fought hard within
the Commission on Human Rights to ensure that tribal
governments and organizations of indigenous people not in
consultative status with the Economic and Social Council
would have an opportunity to participate in the Working
Group and said that the Working Group needed all of their
insights.
19. The representative of the Government of Peru pointed out
that the Working Group could not digress from its sole
mandate of drafting a declaration. He expressed his
confidence that the final report would reflect the
legitimate concerns of the indigenous people with relation
to the mechanisms for participation and stated the belief
that the Commission on Human Rights and the Economic and
Social Council should study complementary means of ensuring
greater participation of indigenous people than currently
exists.
20. The representative of Colombia underlined the importance
of the participation of indigenous people in the debate on
the draft declaration and expressed concern about the
proposal by indigenous peoples that the Sub-Commission's
draft be adopted without change as well as the proposal to
modify the rules of procedures. The delegation stated that
it would support any decision the Chairman thought
appropriate in order to make the session a success.
21. The representative of the Government of the Russian
Federation stated that full participation of indigenous
peoples was vital and that without it the work of the
Working Group would be meaningless. He noted that progress
in the adoption of the declaration could only be achieved
through dialogue. He said that the report of the Working
Group should reflect the indigenous peoples' voice and
commented that the rules of participation had been flexible
within the Working.
22. The Chairperson-Rapporteur stated that he considered all
the concerns expressed in the indigenous caucus statement
were valid and merited the special attention of all the
governmental delegations of the Working Group. He reiterated
that he had worked towards the creation of an open climate
of discussion within which indigenous people could express
their views in their entirety and total freedom. He pointed
out that the report would specifically reflect the concerns
expressed by the caucus of indigenous people concerning the
necessity to study additional forms and mechanisms that
would permit greater participation of indigenous people in
the Working Group. He reiterated that the draft as adopted
by the Sub-Commission was the basis of the work of the
working group and that this session was not an exercise of
modification and drafting. He hoped that a constructive
exchange of the different opinions would allow the United
Nations to adopt a declaration on the rights of indigenous
people that would ensure effective protection.
23. In a further statement of the indigenous caucus, an
indigenous representative stated that it must be explicitly
recognized that indigenous nations and peoples were equal
participants in the Working Group and not "observers" and
that they should have full input on the drafting of the
reports of the sessions of the Working Group. He stated
furthermore that indigenous peoples must have equal ability
to recommend how the work of the Working Group is to proceed
and play a direct role in the development of the agenda and
all other decision-making processes of the Working Group. He
proposed that State-governments discuss with indigenous
peoples, both individually and collectively, a change of the
rules of the Working Group with a view to securing full and
equal indigenous participation which was felt to be a
reasonable proposal that fell within the mandate provided to
the Working Group by the Economic and Social Council. He
said that the indigenous caucus was formally requesting that
delegations seriously consider these proposals, which were
intended to offer constructive solutions to the practical
problems brought to light at this session. He stated that no
one wanted to waste valuable time on procedural wrangling,
but it was important to all indigenous delegations present
that these matters be properly addressed. In closing, he
expressed appreciation for the efforts of the Chairman-
Rapporteur and the patience of all those present.
24. This statement was supported by several joint and
individual statements of indigenous organizations.
25. Following consultations, participants agreed to first
hold a general debate on the fundamental issues and concepts
of the draft declaration adopted by the Sub-Commission
"hereafter participants would comment on the operative
paragraphs of the draft without, however, undertaking a
drafting exercise. This amendment to the organization of
work was adopted.
26. At the ... meeting, the present report was adopted by
the Working Group.
GENERAL DEBATE
27. The representative of the Government of Bolivia stated
that his Government generally supported the draft adopted by
the Sub-Commission considering that it contained the minimum
standards for the protection of indigenous peoples and is in
line with national legislation. He stressed that Bolivia
believed it was fundamental to use the term "indigenous
peoples" and reiterated the hope that the General Assembly
could adopt the declaration as soon as possible. The
representative of the Government of Chile said that the Sub-
Commission's draft constituted a solid basis for the work of
the Group and that the search for better wording should not
distort the meaning of the draft. He stated that Chile
supports the use of the term "indigenous peoples" but said
that self-determination could not become a threat to the
territorial integrity of States.
28. The representative of the Government of Fiji reported on
a workshop hosted by his Government which attracted the
participation of more than 30 indigenous participants from
the Pacific region. The purpose of the so-called Suva
Workshop was to strengthen capacity, and to disseminate as
widely as possible information on the substantive aspects of
the draft declaration, and how it affects indigenous
peoples. He reported that the Suva Workshop had been
unanimous in its full support for the draft declaration in
its present form and moreover, it had agreed that the
existing language should be retained and, where possible,
strengthened. Participants also joined a general consensus
that efforts by some States to undermine the existing
language, should be actively resisted by indigenous peoples
and governments supportive of them.
29. The representative of Mexico referred to article 1 of
ILO Convention 169 and noted that the use of the term
"indigenous peoples" should not imply rights that could be
conferred in international law. He spoke of the Mexican
Constitution and in particular article 4 which recognised
the multicultural composition of his country. He stressed
that indigenous people had a right to development, which
included the right to participate in economic, social,
cultural and political development. He also hoped that the
draft declaration would be based on existing human rights
norms, in particular ILO Convention 169.
30. The representative of the Government of Finland stated
that, contrary to what had been argued in the Working Group,
Finland was of the opinion that the language of the draft
declaration, which his Government believed to define minimum
standards, was not at all incompatible with corresponding
United Nations instruments. He said that with regard to the
obligations of States, the language of the draft was similar
to that of the Declaration of Rights of Persons Belonging to
National or Ethnic, Religious and Linguistic Minorities. He
stated that Finland supported the use of the term
"indigenous peoples" since it makes meaningful the great
number of collective rights in the draft. Finland was also
ready to accept the term "self-determination" since this
right of all peoples is a fundamental principle of
international law and carries with it a State duty to
promote it. He extensively referred to recommendation No.
XXI (48) of the Committee on the Elimination of Racial
Discrimination which emphasized that one has to distinguish
between internal and external aspects of the right to self-
determination. He stated that, according to the Committee,
the internal aspect means that all peoples have the right to
pursue freely their economic, social and cultural
development without outside interference, while the external
aspect implies that all peoples have the right to freely
determine their political status and their place in the
international community based upon the principle of equal
rights and exemplified by the liberation of peoples from
colonialism and by the prohibition to subject peoples to
alien subjugation, domination and exploitation. The
Committee had pointed out that Governments should be
sensitive towards the rights of persons belonging to ethnic
groups but emphasized that the Committee's activities should
not be construed as authorizing or encouraging any action
that would dismember or impair, totally or in part, the
territorial integrity or political unity of sovereign and
independent States.
31. The representative of the observer Government of
Switzerland reiterated the urgency of adopting a declaration
of substance which, through its clarity and conciseness,
would have to be widely understood and accessible, as an
important political signal by the international community.
She stated that her Government felt that there were enough
elements available to understand the term "indigenous
peoples", which her Government preferred, without defining
it. She referred to Switzerland that, with a practice of
federalism and direct democracy, was very sensitive towards
the rights of minorities and the cohabitation of different
cultures, free to define themselves, peacefully, as peoples.
She stated that Switzerland had, despite its diversity,
remained a unitary State through the application of the
principle of subsidiarity that resulted in the cantons
having broad powers, in particular with regard to education.
Her Government believed that such a concept could also be
applied to the situation of indigenous peoples.
32. The representative of the Government of the United
States of America emphasized its strong support for the goal
of protecting indigenous rights, both at home and abroad,
particularly those pertaining to the freedoms of religion,
speech and association. He stated that his Government viewed
the adoption of a draft declaration as of critical
importance.
33. The representative of Government of New Zealand said
that to achieve a Declaration that would be applicable to
and for the benefit of indigenous people in all parts of the
world, some very difficult issues had to be addressed by the
Working Group. Not all the issues would be resolved at the
current session. The process towards a consensus Declaration
would take time and would involve negotiation and compromise
by all involved. She added that indigenous people had for a
long time made a substantial effort in order to set clearly
before the international community their views and
objectives. It was appropriate, indeed essential, that their
views continue to be registered in the Working Group. The
representative noted that following the general election
held in New Zealand on 12 October, negotiations were
underway among the political parties represented in the new
Parliament to determine who has the necessary level for
support to form the next Government. A convention on
caretaker Government currently applied and it was thus not
appropriate for the delegation to make detailed statements
on the New Zealand position for the time being.
34. The representative of the Government of Peru stated that
his Government could accept the majority of the articles as
adopted by the Sub-Commission but regarded certain articles
contradictory and impractical in their applicability. He
stated that it was his Government's national experience that
it was possible, through constructive dialogue, to develop
practical solutions that guarantee indigenous peoples
different high levels of self-government which take into
account the concerns and rights of States. He stated
furthermore that, in order to come to precise formulations
within the draft, especially with regard to self-
determination, it would be necessary to simultaneously
advance towards a solution regarding some Governments'
concerns with regard to the absence of a definition of
"indigenous peoples". The representative of the Russian
Federation stated that many articles of the draft were
acceptable to his Government but that some needed
modification.
35. The representative of the International Labour Office
stated that, while ILO Convention 169 contained minimum
standards for the protection of indigenous peoples in the
countries where they live and procedures by which their
active participation in the economic and social life of
their countries was ensured, the Working Group had the task
of framing an inspirational document that could reflect the
hopes of indigenous peoples. She said it was therefore
essential that the declaration, once adopted, would not fall
below the standards set in ILO Convention 169, but would
follow the guiding principles of the development of human
rights law and constitute a progression. In quoting a
previous statement, she reiterated that the ILO Conventions
dealing with indigenous peoples had encountered no
particular problems in application because of their lack of
definition. Instead, they laid down criteria by which their
coverage in individual cases was determined, and left to the
national parties to determine precisely, the groups covered.
She added that ILO Convention 169 included the vital concept
of self-identification the ILO regarded essential. She said
that those involved must, with the active participation of
those directly affected, adopt some objective criteria to
determine who is covered by international law without
inserting an "external" definition into the declaration.
36. The representative of the Grand Council of the Crees
said it wanted the Working Group to recommend to the
Commission on Human Rights the approval of the text as
approved by the Sub-Commission without changes, deletions or
amendments. He sated that each item in the draft was based
on the experience of indigenous peoples and was the product
of substantial compromise on their part, and, as such, could
only provide a minimum standard of protection of rights. He
continued by saying that the draft did not create special
rights for indigenous peoples but at best corrected the fact
that existing human rights instruments had failed to protect
the rights of indigenous peoples. The declaration was
therefore directed to the effective and full application of
international standards to all peoples, including indigenous
peoples and with that in mind, nothing in the draft should
offend the sensibilities of any State or Government that
values and respects the human rights of all peoples. He
stated that the Grand Council placed particular emphasis on
the respect for the exercise of the right of self-
determination of indigenous peoples, and the principle that
States respect the obligation to obtain the full and
informed consent of indigenous peoples before they
commission any procedures which affect their territories or
environment. He used the example of the threat of unilateral
break away of the Province of Quebec from Canada and the
affects on the existing constitutional rights, citizenship,
treaty rights, and the consequential denial of their right
to self-determination as an example which demonstrated the
need for the full exercise of self-determination by
indigenous peoples.
37. The representative of the Cordillera Peoples Alliance
stated that the draft declaration constituted a minimum
standard for the protection of the rights of indigenous
peoples and called upon the Working Group to adopt the text
as it stood. The Lumad Mindanaw Peoples Federation also
supported adoption of the draft declaration without changes.
38. The representative of the Saami Council stated that the
draft represented minimum universal standards for the rights
of indigenous peoples and should therefore not be weakened.
He considered adoption a matter of urgency. He said that the
Saami Council saw a clear causal link between the absence of
a universal instrument protecting the rights of indigenous
peoples and the problems faced by indigenous peoples. He
expressed the belief that it was possible to resolve any
questions related to the right of self-determination and
indigenous rights over lands and related resources if all
were willing to interpret them in the right context based on
the situation of indigenous peoples and referred to the
principle of equality of indigenous peoples with other
peoples.
39. The representative of the Chittagong Hill Tracts Peace
Campaign stated that the draft is the minimum standard to
promote and protect the rights of indigenous peoples. He
expressed his concern that some Governments wanted to define
indigenous peoples in an attempt to water-down the draft.
40. The representative of the Indian Confederation of
Indigenous and Tribal Peoples stated that the draft was an
expression of the minimum acceptable standards of the rights
of indigenous peoples and called upon the Working Group to
recommend immediate adoption so as to enable it to be a true
instrument of empowerment to the indigenous peoples enabling
them to determine their own future as equal partners in the
world community.
41. The representative of the New South Wales Aboriginal
Land Council in a joint statement with several other
indigenous organisations from Australia stated that the
right of self-determination was undeniably the cornerstone
of their indigenous rights and the inclusion of a weakened
expression in the draft would be unacceptable not only to
indigenous peoples but also to others who support the
indivisible, universal and non-discriminatory nature of
human rights. He said that the collective nature of
indigenous rights were a direct application of the right of
self-determination and a direct expression of their right to
exist as distinct peoples. He continued by stating that
although the draft did not reflect entirely their positions
they supported it as an articulation of minimum standards.
He said that the reasons for these broad positions were that
the draft is a comprehensive articulation of interrelated
principles which had been identified over decades, that the
principles in the draft were drawn from presently recognized
international human rights law, that they had been analyzed
in the context of the historic and continuing violation of
these rights, that the principles offer guidance as to how
to remedy this situation, and that the participants in the
process of elaboration had included indigenous peoples,
various non-indigenous non-governmental organizations,
independent, internationally recognized scholars, lawyers,
and Governmental and inter-governmental representatives.
42. The representative of the Indigenous World Association
stated that the draft was only a step forward to address the
subjugation of indigenous peoples and was the framework to
treat indigenous peoples with respect and give them the
protection they must have in order to survive under
repressive nation-States. He said it provided indigenous
peoples with a legal basis through which they could insist
on the protection of their collective rights and their right
to political, economic and cultural survival. He therefore
insisted on adoption as minimum standards, without fear of
dilution and stated that it must not take another twelve
years of debate before adoption.
43. The representative of the International Organization of
Indigenous Resource Development stated that the draft was an
accurate statement of customary international law and
practice and that the rights therein arose from history and
morality. He said that elaboration of the draft was not a
legalistic exercise but one of declaring important human
rights. He stated that indigenous peoples fell at the bottom
of every indicator of social and economic well-being which
was due to the fact that their rights to self-determination
were not recognized. He said that self-determination was a
basic human right that all indigenous peoples had by virtue
of their existence and meant nothing more than the ability
of a group to survive with its own identity. Another
representative from the same organization stated that the
right of self-determination was fundamental to all their
work and that they could not agree to two categories of
peoples with regard to secession. He also stated that the
related fundamental principle of consent was of major
importance and that treaties are international agreements
reflecting a Nation to Nation relationship with the Crown.
The spirit and intent and indigenous understanding must be
honoured and respected. As far as indigenous peoples are
concerned, treaties are evidence of the right of self-
determination. He called upon the Working Group to recommend
to the Commission on Human Rights, the Economic and Social
Council and the General Assembly that the draft be approved
as it presently stands.
44. The representative of the Ikce Wicasa Ta Omniciye
maintained that in order to ensure that the declaration is
not used as a tool for the destruction of indigenous
peoples, the existing language must remain without amendment
and requested that the draft be adopted as the minimum
standards of protection of the rights of indigenous peoples
and nations.
45. The representative of the Aboriginal and Torres Strait
Islander Commission reiterated the statement of the
Aboriginal and Torres Strait Islander Social Justice
Commissioner on behalf of indigenous delegations from
Australia stated that the draft reflected a consensus of all
the participants in the elaborating process on the
historical and contemporary experiences of indigenous
peoples, on their perspectives and aspirations and as such
was neither theoretical nor abstract but represented the
absolute minimum standard of protection. He stated
furthermore that the draft did not create any special rights
or privileges but instead sought to correct the fact that
international standards had not been applied equally to all
peoples and that international human rights instruments had
failed to protect their rights and freedoms. He recalled
that the joint position of the indigenous delegation from
Australia was that the integrity of the draft depended upon
an unqualified recognition of the right of indigenous
peoples to self-determination as the pillar upon which all
other provisions of the declaration rest. He stated that the
language of article 3 must remain unaltered. He said that
without the recognition of their collective rights as
peoples, the declaration could not adequately protect their
most basic interests and was thus an indispensable feature
of the draft. He stated that individual human rights would
not be weakened by a reference to collective rights of
indigenous peoples, but instead would complement, and indeed
strengthen, the individual rights of 300 million indigenous
persons. While referring to article 2, 4(a) and 14 of the
International Convention on the Elimination of All Forms of
Racial Discrimination, article 6(1) of the 1978 UNESCO
Declaration on Race and Racial Prejudice, articles 19-24 of
the African Charter on Human and Peoples' Rights, the
international prohibition of genocide, as well as rights to
peace, permanent sovereignty over natural resources, a clean
and healthy environment, development and self-determination,
he stated that draft was not the first international
instrument to attribute rights to collectivities.
46. The representative of the Miccosukee Tribe of Indians of
Florida stated that as we continue the democratization of
the world, we must not forget to recognize the rights of
indigenous peoples and unanimously approve the 45 articles
of the draft.
ARTICLES 12, 13 AND 14 AND ARTICLES 24 AND 29
47. The representative of the Government of Brazil stated
that his Government supported whole-heartedly articles 12,
13 and 14 since they were essential to the survival of
indigenous people. He stated however that they deserved
further elaboration considering the overall question of
intellectual property in the declaration and possible
contradiction with national and international laws. In this
respect he suggested deleting the words "archaeological and
historical sites" in article 12 in light of a national
responsibility for preservation.
48. The representative of the Government of France expressed
the general concern that the declaration must be in
accordance with other human rights standards. In light of
this she stated that the objective to protect indigenous
traditions and customs as laid down in articles 12, 13, and
14 did not pose a problem in principle but rather in
practice where these traditions are not in line with human
rights standards or national law. She also stated that the
application of article 14 could not prevent the use of the
national language.
49. The representative of the Government of Japan stated
that with regard to article 12 property ownership and
expropriation under national law had to be taken into
account. With regard to the second paragraph of article 13
he said that politics had to be separate from religion. He
pointed out that a declaration is by definition non-binding
and considered therefore the phrase "shall take effective
measures" in the second paragraph of article 14 too strong.
He furthermore stated that his Government supported the use
of the term "indigenous people".
50. The representative of the observer Government of
Switzerland stated that the declaration had to be in
conformity with human rights standards. She referred to the
Universal Declaration on Human Rights as a cohesive human
rights instrument which therefore had been widely
disseminated. She said that articles 12 and 13 had to be
redrafted so that they would read better, were not
repetitious and easier to understand. She also stated that
the second paragraph of article 14 went beyond protection
and should therefore form a separate article to underline
its importance.
51. The representative of the Government of Ukraine
requested clarifications with regard to the second paragraph
of article 14 as the wording, style and sense, was not very
clear. She pointed out that indigenous people, in general,
did not get involved in legal proceedings. She stated that
indigenous people not only had to understand the legal.
system but also had to be understood by it. She said that
further work was necessary on articles 12, 13 and 14.
52. The representative of the Government of China stated
that articles 12, 13 and 14 were important and agreed with
their contents. He considered however that since they
contained cultural rights they should be placed after Part
VI of the draft which contained civil and political rights.
He said that articles 16, 24 and 29 dealt with similar
rights as articles 12, 13 and 14 and should therefore be
grouped together.
53. The representative of the Government of Mexico stated
that article 14 should be placed in a broader framework and
suggested comparison with article 12 of ILO Convention 169
with regard to access to justice. She said she supported the
suggestion made by Switzerland. The representative of the
Government of Ecuador stated that in general his Government
had no objections to articles 12, 13 and 14 but that he
reserved the right for more precise drafting in future.
54. The representative of the Government of Chile stated
that his Government could adopt the present wording of
articles 12, 13 and 14 without much difficulty. He stated
that he considered Brazil's suggestion to delete the words
"archaeological and historical sites" not very well founded.
He suggested looking for new wording that took concerns into
account but retain the two concepts. He also suggested
adding to article 12 a paragraph similar to that of
paragraph two of articles 13 and 14 to allow States to
determine how to protect and preserve.
55. The representative of the Grand Council of the Crees
reminded participants of the practical importance of
articles 12, 13 and 14 and that the articles were not
abstract but placed in the draft because of specific
problems indigenous peoples faced which had not been
adequately protected by existing international instruments.
With regard to a concern expressed by France he stated that
nothing in the draft prevented the use of the national
language.
56. The representative of the Government of Malaysia said
that his Government accepted the general thrust of articles
12, 13 and 14. With regard to article 12 he said that he
shared the concern of Japan concerning property ownership
and requested that a clear definition of "spiritual
property" be provided. Concerning article 13 he said that
the right to repatriation had to be qualified according to
the circumstances and more narrowly defined He said that the
"measure" to be taken by States according to the second
paragraph of article 13 should be defined. He also requested
further clarifications of the second paragraph of article 14
which he considered vague and in this respect referred to
the terms "political proceedings" as being unclear.
57. The representative of the Government of Sweden said that
her Government had some difficulties with regard to
"restitution" as found in article 12 and suggested the
deletion of the text after the word "literature". She said
that the traditions referred to in article 13 should not
conflict with universal human rights norms and suggested
insertion of the phrase "in accordance with recognized human
rights norms" after the word "ceremonies". She stated that
the second paragraph of article 14 was unclear in its use of
the phrase "where necessary" and that measures only have to
be taken when there is a real problem of communication.
58. The representative of the Government of the Philippines
stated that the second paragraph of article 14 should be
clarified and suggested that articles 12, 13 and 14 be
consolidated in 1 or 2 articles. She said her Government
shared the concerns expressed by Brazil concerning the
protection of archaeological and historical sites and also
raised the issue of the meaning of spiritual property.
59. The representative of the Government of The Netherlands
associated himself with the concerns of France, Switzerland
and Sweden that the exercise of the rights contained in
articles 12 and 13 could not run contrary to general human
rights law. He therefore suggested the inclusion of a
safeguard clause.
60. The representative of the Government of Brazil fully
supported adoption of article 24 as it stands considering
that the issue of traditional knowledge was of utmost
importance. He stated that article 29 needed to be
strengthened and proposed the addition of a third paragraph
which would read: "They have also the right to a fair and
equitable sharing of the benefits arising from the
utilization, including commercial utilization, of their
traditional knowledge".
61. The representative of the Government of Canada stated
that article 12 identified two elements: the protection and
development of culture; and the restitution and return of
property, which perhaps should be addressed in two separate
paragraphs. He said that his delegation considers that
States should facilitate, subject to national laws, the
efforts of indigenous people to maintain, protect and
develop manifestations of their cultures, while respecting
the legitimate rights of others. He stated that there was a
positive evolution at both international and national levels
with respect to the return of cultural property on which the
provisions of the declaration should build. With regard to
article 13 he noted that, Canada supported the principles
through access to sacred sites in privacy would require a
balancing of interests which respects the legal rights of
others under domestic laws. He stated also that his
delegation fully agreed with the principle contained in the
first paragraph of article 14. The second paragraph dealt
with civil and political rights, rather than cultural,
religious and linguistic rights, and he suggested it be
moved to Part V of the draft. He believed that on this issue
there should be consistency with international instruments,
notably international humanitarian law. He considered it was
unclear what "other appropriate means" might be.
Furthermore, he stated that Canada did not agree with the
suggestion of the Technical Review to move article 24 to
Part III considering that traditional medicine's
complementary use could be better emphasized by leaving the
article in Part V. He suggested a broad interpretation of
the second paragraph of article 24 to address the issues of
nutrition, pre- and post-natal care and substance abuse. He
suggested adding a paragraph on children in Part V. He
continued by adding his support to the suggestion of the
Technical Review that article 29 on intellectual property be
moved to Part III. At present only a broad statement of
principle should be included to the effect that indigenous
people have the right to a fair and equitable sharing of the
benefits arising from commercial utilization of their
knowledge along with acknowledgment of third parties. The
Working Group must also take account of the outcome of
ongoing and future work in otter fore.
62. The representative of the Government of Finland stated
that the second paragraph of article 14 should be amended to
the effect that indigenous peoples can use their own
language not just one they can understand. He also stated
that the contents of article 29 were encouraging.
63. The representative of the Government of France stated
that the right to traditional medicines and health practices
as contained in article 24 should be in line with standards
of public health set by organizations such as the World
Health Organization. She also stated that the scope of the
right to the "protection of vital medicinal plants, animals
and minerals" contained in article 24 should be defined.
She said that article 29 contained provisions for positive
discrimination and thus gave rise to certain concerns. She
also said that she wanted more discussion and clarity on the
measures to be provided by States.
64. The representative of the Government of Australia said
that all the comments by his delegation were preliminary and
that his government would wish to give further consideration
to the draft before taking final positions. He expressed his
Government's concerns over the rights of third parties to
ownership within the framework of article 12. He also
expressed the general concern with regard to the feasibility
and practicality of restitution concerning past acts and
pointed out that there was a link with article 27 that dealt
with restitution of land. He stated that article 13 was
generally consistent with international and domestic
Australian law but would wish an exchange of views on the
content of the term "intellectual property". With regard to
article 14 he expressed concern with regard to eventual
resource implications and stated with regard to the second
paragraph that it was too broadly worded within the phrase
"whenever any right of indigenous peoples may be
threatened", especially the word "may". With regard to the
second paragraphs of article 13 and 14 he stated that these
were prescriptive and did therefore not belong in a
declaration and furthermore pointed out that in a federation
it was not just the central Government that had to take
measures to protect rights. On article 24 he requested
further clarification with regard to the right laid down in
the first paragraph and also wished to know the meaning of
the term "special measures" in the second paragraph of
article 29. In this respect he wondered whether this term
carried the same meaning as in the Convention on the
Elimination of All Forms of Discrimination. He concurred
with Canada that recent and ongoing developments had to be
taken into account with regard to the protection of
intellectual property, particularly under the Convention on
Biological Diversity.
65. The representative of the Government of Peru stated that
his Government fully agreed with the text of article 24 but
considered that article 29, although fundamental, could be
improved and strengthened. In this respect he referred to
Brazil's proposal to add a paragraph as positive.
66. The representative of Argentina suggested amending
article 12 by replacing the phrase "in violation of their
laws" to "in violation of the laws". With regard to article
13 she suggested adding the phrase "as appropriate" after
the phrase "States shall take effective measures". She
stated that her Government supported article 14 but was
concerned about the resource and other implications. With
regard to article 24, she stated that its application should
not infringe on State regulations.
67. The representative of the Government of Malaysia
supported article 24 but wanted further discussion on the
scope of the rights to use traditional medicines and health
practices to ensure that they do not harm the health of the
practitioner. With regard to article 29, he expressed some
doubts on the phrase "special measures".
68. The representative of the International Organization of
Indigenous Resource Development suggested specific wording
for articles 12, 13, 14, 24 and 29 by reading out the text
of the articles in the draft.
69. The representative of he International Indian Treaty
Council called for the adoption of the draft as adopted by
the Sub-Commission as minimum standards for the protection,
promotion and recognition of the rights of indigenous
peoples. She wanted it to go on record that her organization
opposed any changes in the wording of articles 12, 13, 14,
24 and 29 as they were an integral part of the draft.
70. The representative of Tupaj Katari stated that article
12 tried to establish legal protection for cultural
traditions and customs in order to preserve the identity of
indigenous peoples. He stated that the Special Rapporteur on
the protection of the cultural heritage of indigenous people
had placed her study within the overall framework of self-
determination and said that the Working Group should do the
same. He suggested moving articles 24 and 29 to Part III.
The representative of the Ikce Wicasa Ta Omniciye stated
that the text of articles 12, 13 and 14 should, as minimum
standards, not be amended.
71. The representative of the United States of America
stated his support for the basic thrust of the articles. He
stated however that the wording of article 12 was overbroad,
in particular the open ended obligation for restitution of
cultural and similar property which is at present not a rule
of international law. He stated that his Government
supported articles 13 and 14 and believed that they could be
adopted with some minor drafting changes emphasizing the
aspirational nature of the document. He stated that his
Government also believed that article 13 could be
strengthened by adding the phrase "and associated funerary
articles" at the end of the first paragraph. With regard to
article 29 he said that individuals belonging to indigenous
populations should be accorded rights with respect to
intellectual property but that the second paragraph appeared
to extend the right of indigenous people beyond those
normally accorded to other members of the State.
72. The representative of the Government of the Russian
Federation supported Sweden in that the declaration could
not contradict existing human rights and noted that a
balanced approach must be taken between national laws and
the rights of indigenous people. He noted that his
delegation had no substantial objections to articles 12, 13
and 14. His delegation felt that the second paragraph of
article 14 needed some work and could perhaps be regrouped
with articles 24 and 29. He suggested that the second
paragraph of article 24 be redrafted to make its central aim
of health protection clearer and could be grouped with
article 28 that contained similar language. With regard to
article 29 he believed that an exhaustive list was
unnecessary and that general terms would serve the
objectives of the document better.
73. The representative of the Indigenous Woman Aboriginal
Corporation noted that the draft did not invent new human
rights standards by stating that articles 14.3, 18.1 and 27
of the International Covenant on Civil and Political Rights,
article 18 of the Universal Declaration on Human Rights,
article 1 of the Declaration on the Elimination of All Forms
of Racial Discrimination, articles 12 and 28.3 of ILO
Convention 169, and article 14.3 of the Minorities
Declaration were all similar to articles 12, 13 and 14. She
also said that translation of needs and aspirations into
rights did not always allow for the use of similar language
in other instruments. In response to governmental concerns
over the resource implications of certain articles she
pointed out that the implementation of all rights had
resource implications. With regard to governmental concern
over possible contradiction between the draft and existing
human rights standards she called for more respect of
Governments when they speak of cultures they had little
knowledge of, pointed out that Aboriginal customary law was
dynamic, and said that certain rights in the draft, like
articles 1, 5 and 8, ensured consistency.
74. The representative of the Government of Chile pointed
out that Chile looked at article 24 as a right of indigenous
peoples to their traditional medicines and health practices
using their plants and animals, while the second paragraph
provided them with a choice of health care. He said that his
Government generally supported article 29 but noted that the
Spanish version read "Tienen derecho a que se adopter
medidas especiales" while the English version, which he
regarded to be the original, read "They have the right to
special measures". He urged the secretariat to review the
different language versions to avoid discrepancies.
75. The representative of the Government of Norway noted
that Part III was perhaps the least problematic of the
draft. He stated that Norway supported article 12 but would
like to see certain terms, like restitution, clarified. With
regard to article 13 he also expressed support but requested
a more careful formulation to take into account the need for
privacy in more areas than just religion. Concerning article
14 he noted that the second paragraph was taken from article
12 of ILO Convention 169 and that any amendment should be
careful not to fall below this. He suggested that articles
24 and 29 be moved to Part III.
76. The representative of the Cordillera Peoples Alliance
said that articles 12, 13 and 14 were all very important in
light of efforts undertaken to control indigenous knowledge,
traditional medicine, and cultural and ceremonial
expressions of indigenous peoples by national and
international corporations. She called for adoption of the
draft as presently drafted.
77. The representative of the Chikasaw Nation said that the
Working Group would do well to take the opinions of
indigenous peoples into account considering that the United
Nations may not be well informed about their problems, while
their ideas came from experience. He called for the adoption
of articles 12, 13 and 14 as presently drafted.
78. The representative of the World Council of Churches
suggested changing the phrase "religious and spiritual
property" to "religious and spiritual assets" in article 12.
With regard to article 13 he felt it appropriate to add the
words "communally" or "collectively" after the phrase "in
privacy" since the ceremonies referred to were usually held
that way. Concerning article 29 he noted that the phrase (as
drafted in the Spanish version) was a reflection of the
right of self-determination.
79. The representative of the New South Wales Aboriginal
Land Council presented a joint statement on behalf of the
Australian indigenous delegations. He stated that article 24
did not create new standards and referred in this respect to
article 12 of the International Covenant on Economic
Cultural and Social Rights and article 25 of ILO Convention
169. He also sated that article 29 did not create new
standards and referred to Chapter 26 of the Rio Declaration,
the preamble and article 8 (j) of the Convention on
Biological Diversity, principle 13 adopted at the Fourth
General Assembly of the World Council on Indigenous Peoples,
the Mataatua Declaration on Cultural and Intellectual
Property Rights, and the Suva-Workshop recently held in
Fiji.
80. The representative of the World Council of Indigenous
Peoples stated that indigenous heritage should be protected
within the boundaries of States and called for the adoption
of articles 24 and 29 as they stood.
81. The representative of the Indigenous World Association
also called for the adoption of articles 24 and 29
especially in light of his concerns of the continued
development of archaeological science and its effects on
indigenous peoples' sacred sites.
82. The representative of the Association Nouvelle de la
Culture et des Arts Populaires called for the adoption of
articles 12, 13, and 14 as they were presently drafted since
they were of critical importance.
83. The representative of the Chittagong Hill Tracts Peace
Campaign stated that cultural rights depended on political
rights and that therefore the draft should be considered as
a whole.
ARTICLES 1, 2, 43, AND 42, 44, 45
84. The Government of the United States of America said that
Article 1 is acceptable and should be widely supported,
subject to satisfactory resolution of the use of the term
"peoples." The U.S.A. stated that it is important to
emphasize that indigenous people, like all persons, are
entitled to enjoy all basic human rights and fundamental
freedoms. The U.S.A. also said that it finds the general
thrust of Articles 2, 42 and 44 acceptable. He stated that
article 42 might encourage States to take measures beyond
the rights affirmed and the policies agreed to in the
declaration. Article 43 was said to be acceptable as
drafted.
85. The Government of New Zealand expressed its support for
the intent of Articles 1 and 2. The representative of New
Zealand also expressed support for Article 43, and said that
it was important that the rights and freedoms referred to in
the draft declaration should apply equally to female and
male indigenous people. The principles underlying articles
42, 44 and 45 were said to be acceptable for New Zealand.
However, it was stated that it is important to ensure that
the language in the draft declaration was consistent with
existing international human rights instruments.
86. The Government of Finland expressed its strong support
for Articles 1, 2, 42, 43, 44, and 45. The representative of
Finland said that Article 43 could be moved to Part I of the
draft. Besides that the six articles were acceptable without
any amendments, changes or deletions. Finland also stated
that it is important that the draft declaration defines
minimum standards for the survival, dignity and well-being
of indigenous peoples, and that it complements and
strengthens existing rights pertaining to indigenous
peoples.
87. The Government of China said that the draft declaration
should not be diluted if it is to give effective protection
to indigenous people. China stated that a definition of the
term "indigenous people" should be included in Part I of the
draft declaration, in order to identify the beneficiaries of
the draft. China said that the "indigenous people" could be
defined as follows: "(i) the original peoples inhabiting in
certain countries or geographical regions and their
descendants when these countries and regions have been
colonized, conquered, occupied and ruled by colonial
settlers from other countries, and these peoples retain some
or all of their own social, economic, cultural and political
institutions; (ii) peoples inhabiting exclusively in certain
geographical regions with unique style of living, and thus
regarded as indigenous by other inhabitants and governments
of the countries in which they live, and they identify
themselves as indigenous." With regard to Article 2, China
expressed that it should be strengthened, and proposed that
the words "adverse discrimination" be replaced with stronger
wording saying that indigenous people should be free from
any practices aiming to discriminate them and that all such
practices must be eliminated.
88. The Government of Brazil stated its support for the
intent of Articles 1, 2, 42, 43, 44 and 45. The
representative of Brazil said that they support the adoption
of Article 1 as it stands, while Article 2 could be improved
by deleting the last part of the sentence after the words
"dignity and rights" as in their view it was redundant. With
regard to Article 42, the representative of Brazil said that
the term "minimum standards" should be replaced with the
term "indicative standards." The language in Articles 43,
44, 45 was endorsed by Brazil.
89. The Government of France made references to their
positions expressed during the first session (1995) of the
Working Group. The representative of France stated that
collective rights do not exist in international human rights
law, and therefore they have reservations with regard to
those articles which aim to establish collective rights. In
their view human rights are individual rights.
90. The Government of the Netherlands expressed their
concern for a possible imbalance between individual and
collective rights as presently stated in Articles 1 and 2.
The representative expressed the view that many of the
collective rights accorded by the draft declaration, as
currently drafted, will not be applicable to individuals.
The inclusion of a general safeguard clause for individual
rights in the draft should be considered. Article 8 (2) in
the Declaration on the Rights of Persons Belonging to
National or Ethnic, Religious and Linguistic Minorities was
mentioned as a possible model for such clause, where it is
said the exercise of the rights set forth in the Declaration
shall not prejudice the enjoyment by all persons of
universally recognized human rights and fundamental
freedoms.
91. The Government of Denmark stated its strong support for
Articles 1, 2, 42, 43, 44, and 45 as presently drafted, and
reiterated its supports for the entire draft in its present
form. Furthermore, Denmark said that it does not support the
idea of including a definition of "indigenous peoples" in
the draft declaration.
92. The Government of Australia said that there appeared to
be no significant difficulties with Articles 1 and 2.
Article 1 was said to be straightforward, while the
provisions of Article 2 were already included in Australian
legislation. Collective rights, including the use of the
term "indigenous peoples", did not create any problems for
Australia. Articles 43 and 44 were said to be acceptable for
Australia. With regard to Articles 42 and 45, Australia was
of the opinion that they should be elaborated further.
93. The Government of Japan expressed its support for
Articles 1, 2, 42, 43, 44 and 45. However, the
representative of Japan also stated its support for the
views expressed by the Government of France that they
understand human rights to be individual rights. The
representative of Japan also expressed the view that a
definition of "indigenous people" should be included in the
draft declaration, and indicated that the Cobo-definition or
the relevant provisions in ILO Convention No. 169 could be
used on the basis of discussion in this regard and also
pointed out that the definition should be flexible in
accordance with the diverse situations of the world's
indigenous people.
94. The Government of Sweden stated its general support for
Articles 1, 2, 42, 43, 44, and 45. However, Sweden also said
that it associates itself with the view expressed by France
that human rights are individual rights only.
95. The Government of the Russian Federation expressed its
support for Articles 1, 2, 42, 43, and 44. However, the
representative of the Russian Federation expressed the view
that the wording of the references in Article 1 to the
United Nations Charter and other instruments, should be
brought into conformity with the wording in other human
rights instruments. Furthermore, the representative of the
Russian Federation expressed reservations with regard to the
concept of "future rights" in Article 44, and whether
Article 45 should be included in its present form. The
wording of Article 9 (2) in the Declaration on the Right to
Development was mentioned as possible language to be
included in the draft declaration.
96. The Government of Mexico expressed its support for the
contents of Articles 1, 2, 42, 43, 44, and 45. With regard
to Article 42, the representative of Mexico also said that
the legal scope of the provision should be emphasized.
97. The Government of Peru expressed its support for all of
the six articles. However, it was suggested that Article 43
be moved to Part I of the draft declaration. Furthermore, it
was said that Article 1 of ILO Convention No. 169 could be
considered for inclusion in the draft.
98. The Government of Canada said it is important that the
Articles are consistent and coherent with existing human
rights instruments. Canada indicated that a provision on
individual rights therefore should be included in Article 1.
He noted that recognition of certain rights of indigenous
people as collective rights merit further consideration and
that this should be done on an article by article basis.
Canada also expressed its support for the content of Article
2. Canada indicated that the terminology in the draft
declaration, dealing with individual and collective
concepts, should be closely reviewed. Furthermore, with
respect to article 42, Canada said this article should be
considered in connection with Article 37, keeping in mind
the need for flexible and progressive implementation. Canada
supported the proposal to move Article 43 to part I. Canada
said that it would interpret Article 45 as referring to,
inter alia, the Declaration on Principles of International
Law concerning Friendly Relations and Cooperation among
States in accordance with the Charter of the United Nations.
99. The Government of Norway expressed its strong support
for Articles 1, 2, 42, 43, 44, and 45, and supported the
idea that Article 43 could be moved to Part I.
100. The Government of Chile expressed its support for
Article 1. However, the representative said that Chile would
like to see the text harmonized with relevant provisions in
ILO Convention No. 169. Chile stated its support for
Articles 2, 43 and 44 as presently drafted. As to Article
42, Chile suggested postponing further discussion until
there is greater clarity on the content of the draft
declaration. With regard to Article 45, Chile expressed the
view that it is necessary to spell out its scope, due to its
impact on the interpretation of the right to self-
determination.
101. The representative of the Association Nouvelle de la
Culture et des Arts Populaires, expressed his full support
for Articles 1, 2, 42, 43, 44, and 45, and emphasized that
these provisions must be regarded as minimum standards.
Furthermore, it was stated that a definition of "indigenous
peoples" could lead to a de facto exclusion of certain
indigenous groups.
102. The representative of the International Organization
for Indigenous Resource Development expressed the view that
there should not be any problems with regard to collective
indigenous rights, since individual and collective rights
can exist side-by-side without any problems.
[Ed. Note: Not certain why this paragraph is numbered 57]
57. The representative of the Inuit Circumpolar Conference
ICC) stated their full support for Articles 1, 2, 42, 43,
44, and 45, and said that these Articles cannot be weakened.
ICC also stated that it supports the entire draft
declaration as it stands, and that the draft has to be
regarded as minimum standards for the rights of indigenous
peoples.
103. The representative of the Aboriginal and Torres Strait
Islander Commission (ATSIC) stated in a joint statement on
behalf of indigenous organizations and indigenous
representatives of Australia, their support for the Articles
under discussion, as well as for the entire draft
declaration in its present form. It was said that the
international community has not attempted to define the
terms "peoples" and "minorities." Moreover, they opposed any
attempts to exclude particular indigenous peoples from the
protection of the draft declaration.
104. The representative of the Chittagong Hill Tracts Peace
Campaign expressed his strong support for the Articles 1, 2,
42, 43, 44, and 45 in their present form. It was emphasized
that the term "indigenous peoples" must be kept in the text
of the draft declaration.
105. The representative of the Indigenous World Association
stated his support for the entire draft declaration,
including Articles 1, 2, 42, 43, 44, and 45, which from
their point of view represents minimum standards for
indigenous rights.
106. The representative of the Grand Council of the Crees
identified the preamble of the draft declaration as an
introduction and interpretive element to the draft. He
strongly supported Articles 1, 2, 42, 43, 44, and 45. The
representative commented on the issue raised by France
namely that all human rights are individual rights and that
there is no need for collective rights, by saying that it
only represents one point of view, and one which is not
universally accepted. He continued by saying that for
instance when racial discrimination is practiced, it is
directed against groups, individuals suffer because they are
perceived by their attackers as members of a group.
107. The representative of Movimiento Indio "Tupaj Katari"
supported Articles 1, 2, 42, 43, 44, and 45. He expressed
the view that nothing prevents indigenous peoples from
having collective rights, and that these rights should be
recognized in the draft declaration. Furthermore, he said
that there is no need for a definition of indigenous
peoples. Some concrete suggestions aiming to improve the
wording of the text were submitted, including, to insert the
word "born" between the words "are" and "free and equal" in
Article 2.
108. The representative of the International Organization of
Indigenous Resource Development expressed its support for
Articles 1, 2, 42, 43, 44, and 45 and read out the present
text of those articles. He suggested that the present text
should remain unchanged.
109. The representatives of the International Indian Treaty
Council, the International Alliance of the Indigenous and
Tribal Peoples of Tropical Forests, MAA Development
Association, and Lumad Mindanaw Peoples Federation all
called for an adoption of Articles 1, 2, 42, 43, 44, and 45
in their present form, without any changes, amendments or
deletions.
ARTICLES 5, 9, 32
110. The Government of Fiji stated its strong support for
the entire draft declaration as it is currently worded,
including Articles 5, 9, and 32. Fiji expressed the view
that a definition of indigenous peoples is neither necessary
nor desirable. Fiji also expressed its views that if the
negotiations move in the direction of favouring a
definition, they will argue strongly for a definition which
is flexible and all-inclusive rather than one which is based
on the historical and colonial experience of only some
indigenous peoples.
111. The Government of Finland stated its support for
Articles 5, 9, and 32, and said that it is ready to adopt
them as currently drafted. As to Article 32, Finland
referred to its statement at the first session (1995) of the
Working Group, in which it stated that indigenous
citizenship as proposed in Article 32, in addition to the
citizenship of the State of domicile, does not create any
legal problems for Finland.
112. The Government of Brazil proposed that Article 5 should
read as follows: "Every indigenous individual has the right
to the citizenship of the State to which he belongs." With
regard to Article 9, Brazil proposed the following text:
"Indigenous people have the right to belong to an indigenous
community, in accordance with the traditions and customs of
the community concerned No disadvantage of any kind may
arise from the exercise of such a right." As to Article 32,
Brazil said that it could be deleted without any problems,
since the provisions are contained in other articles.
113. The Government of Australia said that there appeared to
be no difficulty with Article 5, which is a restatement of
Article 15 of the Universal Declaration on Human Rights, and
Article 24 (3) of the International Covenant on Civil and
Political Rights. With regard to Article 9, Australia
expressed the view that further discussion is needed in the
Working Group on the inclusion and meaning of the word
"nation." It was said that Australia would not be able to
support the term "nation" if its meaning goes beyond the
concept of "first nations." Furthermore, Australia said that
there is a need to further clarify the meaning of the term
"citizenship" in Article 32, and how the term relates to use
of the word "nationality" in Article 5. With regard to sub-
paragraph 2 of Article 32, Australia expressed that the
Working Group could perhaps explore the possibility of
combining this paragraph With Article 19.
114. The Government of Malaysia expressed its support for
Article 5, while it said that Articles 9 and 32 are not
applicable for Malaysia. As to Article 9, Malaysia said that
there is a need to further clarify the meaning of the word
"nation."
115. The Government of Brazil expressed the view that the
meaning of the term "nation", in Article 9, has to be
clarified. With regard to Article 32, Japan stated their
support to the view expressed by Brazil that the Article
could be deleted.
116. The Government of Ukraine expressed its general support
for the draft declaration. As to Article 32, Ukraine said
that the first sentence in Article 32 is not acceptable to
them, due to its inconsistency with Ukrainian legislation.
117. The Government of Canada expressed its support for the
inclusion of Article 5 in the draft declaration, and said
that Canada understands this right to apply to nationality
within an existing state. With regard to Article 9, Canada
recognised the importance of self-identification and
community acceptance, but said that the notion of a "right
to belong" needs some clarification as to how it would be
consistent with existing human rights standards in
international law. As to Article 9, "Canada suggested a more
explicit reference to the right of each individual to a
nationality. Canada indicated that the Declaration should be
flexible enough to allow for varied and changing membership
criteria. Also, it noted that the communities, right to
determine membership, as with all other aspects of
government, must be subject to an individual's rights to
fairness. Canada expressed the view that the Working Group
should consider whether Article 32 should be combined with
Articles 8 and 9, or whether the entire Article is
superfluous.
118. The Government of Ecuador stated that Article 5 relates
to Constitutional matters. In Article 9 the delegation
considered that the term "indigenous nations" should be
revised to avoid misunderstanding. As to Article 32, Ecuador
said that it has problems with the term "indigenous
citizenship" since in Ecuador they only have citizenship of
the State.
119. The Government of the United States of America
expressed its support for Article 5, and that the right to a
nationality is already enshrined in Article 15 of the
Universal Declaration on Human Rights, and Article 24 (3)
concerns of ICCPR. However, it was said that the text of
Article 5 should be clarified to ensure that its scope State
nationality. With regard to Article 9, U.S.A. expressed its
endorsement of the concept that individuals have the right
to self-identification and to exercise this right in
community with others. The question of an individual's right
to non-discrimination and due process in questions of
membership was identified as something the Working Group
should look into. As to Article 32, U.S.A. stated that it
agrees with the general thrust of the Article.
120. The Government of Norway expressed its support for
Article 5, and said that such a provision is already
included in the Universal Declaration on Human Rights, the
Convention on the Rights of the Child, and in the ICCPR.
Norway also stated its support for Article 9. As to Article
32, Norway said that the provision should be clarified
further, e.g. if it is to be understood as giving an open-
ended choice to determine nationality. However, the right to
determine indigenous citizenship was said not to create any
problems for Norway, as such a system is already established
in Norway via the Saami Electoral Register. It was also said
that it should be considered whether Article 32 could be
merged with Article 5.
121. The Government of Switzerland expressed its support for
Articles 5, 9, and 32. As to Article 9, Switzerland said
that the meaning of the term "nation" needs further
clarification. It was said that the Working Group should
consider merging Article 32 with other relevant articles.
122. The Government of Sweden said that Articles 5, 9, and
32 overlap one another, and that the provisions therefore
should be clarified further. As to Article 32, Sweden stated
its support for the view expressed by the Government of
Australia that certain elements need to be clarified, such
as dual citizenship.
123. The Government of Japan expressed its support for the
Australian position about article 9, in particular regarding
the concept of "nation". It also shared the concern
expressed by Brazil about article 32.
124. The Government of the Russian Federation said that
Articles 5 and 9 are acceptable as currently drafted. The
representative said that the distinction between the term
"citizenship" in Article 32 and the term "nationality" in
Article 5 must be clarified.
125. The Government of Argentina expressed its support for
the general thrust of Article 9. However, the representative
stated that Argentina would like to see the term "nation"
clarified further. As to Article 32, Argentina expressed the
view that the meaning of the term "citizenship" need further
clarification, as it has an important legal connotation.
126. The representative of the International Organization of
Indigenous Resource Development, expressed its support for
Articles 5, 9, and 32 by reading the present text of those
articles and suggesting that the present text should be kept
unchanged.
127. The representative of the Aboriginal and Torres Strait
Islander Commission (ATSIC) expressed his strong support for
the Articles 5, 9, and 32 as currently drafted.
128. The Aboriginal and Torres Strait Islander Social
Justice Commissioner presented a joint statement, on behalf
of indigenous organizations and indigenous representatives
of Australia, in which he expressed strong support for
Articles 5, 9 and 32.
129. The representative of the Saami Council expressed his
strong support for Articles 5, 9, and 32. He also referred
to the statement of Sweden, that Sweden associates with the
view that human rights being individual rights only. The
Saami Council representative said that the Swedish position,
with regard to collective rights, is inconsistent with
national Swedish legislation in which the Saami reindeer
herding rights are recognized as collective Saami rights.
130. The representative of the International Indian Treaty
Council called for the adoption of the draft declaration, as
approved by the Working Group on Indigenous Populations and
the Sub-Commission, in its entirety without any changes,
amendments or deletions as minimum standards protecting and
promoting the rights of indigenous peoples. She stated that
they would not accept any changes whatsoever in the text or
wording of Articles 5, 9, and 32, as they are integral parts
of the entire document as it now stands.
131. The representative of the Ainu Association of Hokkaido
said that the draft declaration should be adopted by the
Working Group as it stands. The Ainu representatives
emphasized that the draft declaration should be adopted
without any definition of "indigenous peoples."
132. The representative of the MAA Development Association
stated that they support the present wording of Articles 5,
9, and 32. It was said that the right to nationality
(Article 5) is already found in Article 15 of the Universal
Declaration on Human Rights, Article 24 (3) of the ICCPR and
in Article 7 of the Convention on the Rights of the Child.
133. The representatives of the World Indigenous
Association, International Alliance of the Indigenous and
Tribal Peoples of Tropical Forests, Association Nouvelle de
la Culture et des Arts Populaires, Comision Juridica Para el
Autodesarrollo de los Pueblos Originarios Andinos, and
Indian Confederation of Indigenous and Tribal Peoples all
expressed their strong support for Articles 5, 9, and 32 as
currently drafted, and called for their adoption in their
present form.
ARTICLES 15, 16, 17 AND 18
134. The Government of Estonia expressed its support for
Articles 15, 16, 17, and 18. The representative said that
her delegation does not have any problems with Articles 16,
17, and 18. As to Article 15, the representative underlined
the importance of State-provided education, and stated that
it is important that indigenous peoples have adequate
opportunities to learn or have instruction in their mother
tongue. It was said that the Working Group should consider a
language which is closer to the provision in Article 4 (3)
of the Declaration on the Rights of Persons Belonging to
National or Ethnic, Religious and Linguistic Minorities.
135. The Government of New Zealand expressed its support for
the thrust of Article 15. However, it was said that the
Working Group may need to consider if account needs to be
taken of the fiscal constraints operating upon States. As to
Article 16, New Zealand said that it does not create any
major problems for them. With regard to Article 17, New
Zealand expressed its support for the underlying intent of
this article insofar at it confirms that indigenous people
have the same right as any person or group to establish
their own media in their own language.
136. The Government of Brazil stated that Article 15, which
deals with the important issue of the right to education, is
generally consistent with Brazilian legislation. It was said
that the establishment and control of educational systems
and institutions by indigenous people could create some
administrative difficulties. As an example the
representative mentioned that in Brazil they have around 170
different indigenous languages, and that most of these
languages are spoken by less than 100 individuals. The
representative stated that Article 15 should take into
account this kind of problem, and emphasized that the main
objectives of the Article are to secure the right to all
levels and forms of education including bilingual education.
As to Article 16 and 18, Brazil expressed support for their
adoption as currently drafted. Brazil also stated its
general support for Article 17. However, it was proposed
that the words "in accordance with national legislation and
regulations" be included at the end of the first sentence in
Article 17.
137. The Government of Canada stated its support for Article
15, and expressed the view that indigenous people should
gain greater control over education. It was also said that
education is important not only for children but also for
youth and adults, and that the scope of paragraph one in
Article 15 should be expanded by referring to indigenous
individuals. It was also said that it might be preferable if
the article referred to "a right to access to education at
all forms and levels". Furthermore, it was said that a new
second paragraph in Article 15 could affirm the right to
establish and control educational systems and institutions
providing education in indigenous languages in a manner
appropriate to indigenous culture, which respect minimum
educational standards. Indigenous children living outside
their communities should have adequate opportunities to
education in their own culture and language, where demand
and resources allow. With regard to Article 16, Canada
expressed its support for the provisions in this article.
However, it was said that further consideration is required.
Canada expressed its support for the provisions contained in
Article 17, but it suggested that the second paragraph
should be moved to Article 16. Canada also expressed its
support for the content of Article 18. However, it was
suggested moving the provision to Part V of the draft
declaration. It was also said that Article 18, which deals
with labour rights, should refer to the rights of indigenous
individuals rather than indigenous peoples. Moreover, Canada
suggested the inclusion of a special reference to indigenous
children in Article 18, stating that indigenous children
will be protected from economic exploitation or work which
is harmful to the child's health, education or development.
Canada said that reference to discriminatory conditions in
Article 18 should not affect a State's ability to implement
affirmative action or equal opportunity programmes.
138. The Government of Chile stated its support for the
principles enshrined in Article 15. However, the
representative expressed the view that there is a
contradiction in Article 15, between paragraph one in which
it is said that indigenous people have the right to control
their educational system, and paragraph three which obliges
States to provide appropriate resources for these purposes.
As to Articles 17, Chile expressed the opinion that the
language in this article should be revised. With regard to
Article 18, Chile stated its support for the general thrust
of this article; however, the language should be revised in
order to bring it into line with Article 20 of ILO
Convention No. 169.
139. The Government of Sweden expressed its general support
for Articles 15, 16, 17, and 18, and emphasized the
importance of Part IV of the draft declaration. The concept
of the right to education, as stated in Article 15, was said
to be of great importance. The representative referred to
the goal of the International Decade of the World's
Indigenous People, in which education is mentioned as one of
the major aspects. As to Articles 16, 17, and 18, Sweden
expressed its support for the general thrust of those
provisions.
140. The Government of France expressed concern with regard
to Article 15, and said that the establishment of a parallel
educational system puts into question the existing
legislative provisions which states that State-provided
education shall be given in French. As to Article 17, France
expressed its support for the principle of the freedom of
expression. However, it was said that this right should be
guaranteed for all individuals, including indigenous
individuals, rather than indigenous peoples as such.
141. The Government of Peru expressed its general support
for Article 15, however, certain aspects need to be further
clarified and brought into line with Part VI of ILO
Convention No. 169. As to Articles 16 and 17, Peru said that
it does not have any problems with those as currently
drafted. With regard to Article 18, it was said that the
general thrust did not create any problems. However, it was
said that Article 18 could be strengthened by bringing it in
line with Article 20 of ILO Convention No. 169.
142. The Government of Japan indicated that it would have
problems with the wording "States shall take effective
measures" in Articles 15, 16, and 17, and that the Working
Group should consider therefore more appropriate wording for
a declaration of a non-binding nature. As to Article 15,
Japan stated its support for the view expressed by France.
With regard to Articles 16 and 18, Japan indicated that it
required further clarification, in particular of the concept
of international labour law in Article 18.
143. The Government of Ecuador stated its support for the
general thrust of Articles 15, 16, 17, and 18. As to Article
18, Ecuador said that the wording should reflect the fact
that international labour law is evolving and not a set of
static norms.
144. The Government of Finland expressed its strong support
for Part IV in the draft declaration, and emphasized the
importance of having Articles 15, 16, 17 and 18 in the
draft.
145. The Government of Australia emphasized the importance
of rights to education to indigenous peoples and of the
right of indigenous communities to establish their own
education systems, schools and media. Furthermore, Australia
said that in relation to Articles 15 and 16, it has already
progressed a long way toward providing opportunities for
education in indigenous languages and the use of traditional
teaching methods. As to Article 17, Australia said that it
was largely consistent with current Australian policy and
practice, however, it was said that the term "access"
should be clarified further and asked why paragraph one is
not confined to State-owned media as is the case for
paragraph two. With regard to Article 18, Australia said
that the article should be more clearly worded so as to
ensure to indigenous peoples the benefit of those
international labour law instruments ratified by States.
146. The Government of Colombia expressed its support for
the general thrust of Articles 15, 16, 17, and 18. As to
Article 15, the representative proposed that it should begin
in the following manner: "All indigenous peoples have the
right to all levels and forms of State-provided education
and the right to establish and control their educational
systems and institutions providing education in their own
languages and in accordance with their own teaching and
learning methods. Indigenous children also have this right.
Indigenous children living outside their communities shall
have access to education in their own languages and
cultures. States shall adopt effective measures to secure
sufficient resources aimed at such purposes, and shall have
the responsibility to guarantee the education and exercise
of cultural diversity with regard to education." Moreover,
Colombia proposed the inclusion of the following sentence at
the end of Article 18: "States shall adopt adequate measures
to respect cultural and ethnic diversity and shall take this
into account in matters relating to labour conditions and
standards."
147. The Government of the United States of America
expressed its general support for the basic premises of
Articles 15, 16, 17, and 18, and said that those articles
are of key importance. As to Article 15, the representative
stated that non-discriminatory access to public education is
a right that should be enjoyed by indigenous persons in
common with other members of the community. Furthermore,
indigenous persons should have the right to create and
administer their own educational institutions, if they
choose to do so. With regard to Article 16, he that the
United States of America supports the general premise of
that article, however, Article 16 as currently drafted,
infringes on freedom of speech. With regard to Article 17,
United States America stated its support for the basic
premise of this article. However, it was also said that such
special group access rights would conflict with most States'
international agreements (governing radio frequencies) and
domestic statutes (placing media ownership in private
hands.) Finally, United States America stated its support
for the basic goals of Article 18. He said that indigenous
persons should have the right to enjoy fully all rights
established under domestic labor law and international
treaties to which the State is a party, without
discrimination on account of their indigenous origin or
identity. He stated that it might be useful to include the
"non-discrimination concept" in the first sub-paragraph of
Article 18.
148. The Government of Bolivia expressed its support for
Articles 15, 16, 17, and 18. The representative referred to
principles and provisions in existing international
instruments and the Bolivian Constitution and legislation
which already applies for indigenous peoples of Bolivia. As
to Article 15, Bolivia stated that it does not agree with
the view expressed by France with regard to this article,
and that it is necessary to involve indigenous peoples in
the administration of the education system in order to fully
guarantee the democratic nature of the education system. As
to Article 16, the representative said that the text should
include the concept of respect for indigenous culture.
149. The Government of Malaysia stated its strong support
for Article 15, and said that the Malaysian Constitution
states that there shall be no discrimination on grounds of
religion, race, descent or place of birth in the
administration of any educational institutions. As to
Articles 16 and 18, Malaysia expressed its support for the
general thrust of the provisions. With regard to Article 17,
Malaysia expressed its general support for the article,
however, it was said that the scope of the obligation "to
take effective measures" should be clarified further.
150. The Government of Argentina expressed its general
support for Articles 15 and 18, however, she said that the
provisions should be more explicit Furthermore, it was said
that provisions of bilingual and cultural education are of
great importance.
151. The representative of the International Organization of
Indigenous Resource Development, expressed his support for
Articles 15, 16, 17, and 18 by reading the present text of
those articles and suggesting that the present text should
be kept unchanged.
152. The representatives of the MAA Development Association,
Union of Bolivian Indigenous Women, Comision Juridica Para
el Autodesarrollo de los Pueblos Originarios Andinos, World
Council of Indigenous Peoples, International Indian Treaty
Council, Indigenous World Association, Society for
Threatened Peoples, Consejo de Todas las Tierras, Indian
Confederation of Indigenous and Tribal Peoples, Association
Nouvelle de la Culture et des Arts Populaires, and Chickasaw
Nation all expressed their strong support for Articles 15,
16, 17, and 18 as currently drafted, and called for the
adoption of the draft declaration without any changes,
amendments or deletions.
153. The representative of the Aboriginal and Torres Strait
Islander Commission (ATSIC) presented a joint statement, on
the behalf of indigenous organizations and indigenous
representatives of Australia, in which he expressed strong
support for Articles 15, 16, 17, and 18, and called for the
adoption of those Articles as currently drafted. As to
Article 15 of the draft declaration, the representative
referred to other international instruments where the right
to education is protected: in Article 26 of the Universal
Declaration of Human Rights, Article 13 of ICESCR, Article
28 (1) of CRC, and Article 26 of ILO Convention No. 169. He
also referred to the following instruments with regard to
the right to establish educational institutions: Article 13
(3) and (4) of ICESCR, Article 29 (2) of CRC, and Article 27
(3) of ILO Convention No. 169. With regard to Article 16 of
the draft declaration, it was said that the provisions
contained in this article are already confirmed in existing
international human rights instruments: in Article 13 (1) of
ICESCR, Article 29 (1) (d) of CRC, Article 4 (4) of the
Minorities Declaration, and Article 31 of ILO Convention No.
169.
ARTICLES 6, 7, 10, AND 11
154. The Government of Sweden emphasized the importance of
Part II of the draft declaration, and said that standards
and principles in the draft should be in line with existing
international instruments. As to Article 6, Sweden said that
this provision should be made as strong as possible, and
that it is necessary to look into existing instruments, in
order to bring this Article into line with provisions in
other instruments. With regard to Article 7, it was said
that it is required further clarification regarding the
concept of collective rights and how the collective rights
in this provisions should be secured. As to Article 10, the
representative said that the wording "lands or territories"
need to be clarified. Moreover, she said that certain
provisions in Article 11 need to be clarified and that
Article 11 should also include provisions pertaining to the
protection of indigenous peoples during internal conflicts.
155. The Government of Colombia expressed its support for
the thrust of Article 11. The representative proposed that
the following should be included in Article 11: "States
shall adopt effective measures to guarantee the exercise of
the collective rights of indigenous peoples to their
territories and to autonomy during internal armed conflicts
and to guarantee the neutrality of indigenous peoples in
such conflicts when they rise and not to compromise their
territories as the sites for the escalation of such
conflicts."
156. The Government of Malaysia expressed its support for
Articles 6 and 7. As to Article 10, Malaysia expressed the
view that an absolute prohibition on relocation from lands
and territories would not be acceptable for his delegation,
and that the provision therefore should be elaborated
further. It was said that the wording "forcibly removed"
therefore should be narrowly defined. With regard to Article
11, Malaysia noted that in periods of armed conflict,
indigenous people will be treated as any other citizens.
157. The Government of Mexico expressed its support for the
general thrust of Article 6. However, the representative
said that it is necessary to include provisions which allows
the authorities to remove indigenous children if, for
example, they are being abused sexually. It was said that
the State under such circumstances is obliged to separate
the children from their families to guarantee their well
being, regardless of their being indigenous or not.
moreover, Mexico proposed that the wording "any pretext" in
sub-paragraph one of article 6 be replaced with the wording
"without any justified cause."
158. The Government of Norway said that Articles 6 is not in
conflict with existing international instrument, however, it
was indicated that the article may need to be revised. As to
Articles 7 (b) and 10, it was said that they should be moved
to Part VI of the draft declaration. The representative also
said that certain ambiguities with regard to provisions
dealing with land rights should be clarified. It was
mentioned that Articles 25, 26, and 27 speak of "lands and
territories which they have traditionally owned or otherwise
occupied or used" while Article 10 speaks of "their lands
and territories." Furthermore, he mentioned Article 16 of
ILO Convention No. 169 which speaks of "the lands which they
occupy." As to Article 11, Norway expressed the view that
certain provisions in this Article need to be clarified.
159. The Government of the Russian Federation stated its
support for Articles 6, 7, and 10, although, he indicated
that some editorial amendments are necessary. As to Article
11, the representative said that his delegation would like
to have more general provisions aiming to protect civilians
rather than categorical demands.
160. The Government of France said that some of the articles
would cause constitutional problems for France. In this
regard, the representative mentioned that Article 12 of the
French Constitution guarantees the right of equality before
the law regardless of race or ethnicity. As to Articles 7
and 10, France said that it has problems with the use of the
term "lands and territories". With regard to Article 11, the
representative said that France cannot accept that certain
groups should have special protection and security.
161. The Government of Brazil said that it is ready to
accept the general thrust of Article 10 and 11 (c), however,
those provisions should recognize that displacements of
communities may be necessary for their own safety in cases
of war or catastrophe. The representative stated that just
and fair compensation have to be assured to displaced
indigenous peoples.
162. The Government of Fiji stated its support for the
concept of collective rights, which are used throughout the
draft declaration, including in Articles 6, 7, and 8. The
representative stated that the principle of collective
rights is an integral component of indigenous societies and
communities, and that international human rights instruments
do recognize collective rights. In this regard he referred
to Articles 5 and 14 of ILO Convention No. 169, Article 2
(2) of the Declaration on the Right to Development, Articles
19 - 24 of the African Charter on Human and Peoples Rights,
and Article 6 (1) of the 1978 UNESCO Declaration on Race and
Racial Prejudice.
163. The Government of Finland expressed its support for
Articles 6, 7, 10, and 11. The representative said that his
delegation supports the views expressed by Norway and
Sweden, that the provisions should be made as strong and
clear as possible and that the language should be brought
into line with existing human rights instruments. As to
Article 11 (a), it was said that questions related to the
recruitment of indigenous individuals into the armed forces
should be elaborated further.
164. The Government of Canada said that the issue of
genocide and the removal of children in Article 6 should be
considered in conjunction with Article 7, and that the focus
of Article 6 should be on the guarantee of the right of
indigenous individuals to life, liberty and security of the
person. As to Article 7, it was said that this article would
be strengthened if it contained a general reference to the
Genocide Convention. The representative indicated that the
term "ethnocide" raised some concerns for Canada.
Furthermore, it was said that the reference "lands and
territories" in Article 7 should be included in Part VI.
With regard to Article 10, Canada said that there is some
confusion regarding the use of the terms "removed" and
"relocation." The representative expressed the view that
"removed" would suggest a temporary move while "relocation"
would suggest a more permanent move. It was said that the
Working Group should consider moving Article 10 to Part VI
of the draft declaration. As to Article 11, Canada expressed
reservations with regard to the concept of "right to special
protection", and asked if indigenous people should have
protection beyond that provided for under international
humanitarian law. The representative said that Article 11
could be an affirmation of the principle that in times of
armed conflict, indigenous people have a right to all
protections offered by international humanitarian law, in
particular those included in the Fourth Geneva Convention.
However, it was said that there may be circumstances in
which special measures are required to ensure that
indigenous people benefit from the protection offered by
international humanitarian law, and that the Working Group
should consider an inclusion of such a principle in the
draft declaration. Canada supported the inclusion of the
principle of prohibiting the use of indigenous people
against each other in furtherance of domestic policies
hostile to indigenous people. It was said that sub-paragraph
(c), which refers to "lands and territories" could be moved
to Article 10 or Part VI. Finally, the representative
expressed the view that the issue of non-discrimination,
contained in sub-paragraph (d), is adequately covered in
Article 2.
165. The Government of Japan said that certain elements in
Articles 6, 7, 10, and 11 must be discussed further. As to
Articles 6 and 7, Japan reiterated the view that collective
rights do not exist in international human rights law.
Furthermore, the representative said that his delegation has
problems with the words "under any pretext" in Article 6,
and that the language should be into line with the language
used in the Convention on the Rights of the Child. It was
also said that Articles 7 (b) and (c), and 10 should be
discussed further.
166. The Government of Australia expressed its general
support for Articles 6 and 7. As to Article 7, Australia
said that the Working Group should seek further
clarification of the meaning and scope of the term
"redress". Furthermore, with regard to Articles 7 (b) and 10
Australia stated its support for the right of indigenous
peoples not to be forcibly removed from their lands. In
relation to compulsory acquisition of land, the Native Title
Act ensures that just terms of compensation would be
provided. As to Article 11, the representative said that the
Working Group should further consider the term "special
protection" for indigenous peoples. It was said that in the
case of armed conflict involving Australia, it would be
difficult foreseeing a situation which would warrant
indigenous people being given preferential treatment over
and above that given to non-indigenous people, although,
this position was said to be influenced by clarification of
the meaning of "protection" in this context. Moreover,
Australia said that if the wording "special protection"
refers to the fact that in times of armed conflict the
possibility of genocide or ethnocide for indigenous
communities is more serious than for non-indigenous
communities, then consideration should be given in the
discussion as to how special care can be taken to ensure
protection for indigenous peoples and their cultural
identities in this context. With regard to sub-paragraph (b)
of Article 11, it was said that the Working Group should
take into consideration discussions on that issue in the
Working Group on the Draft Optional Protocol to the
Convention on the Rights of the Child on Involvement of
Children in Armed Conflicts.
167. The Government of Chile expressed its support for
Article 6, and said that the draft declaration should
clearly spell out the term "distinct people", and bring it
into line with Article 1 of ILO Convention No. 169. As to
Article 7 (a), (b), (c), and (d), Chile expressed its
support for the general thrust of those provisions. However,
the representative expressed reservations with regard to the
term "cultural genocide", due to the very specific meaning
of the term "genocide" under international law. With regard
to Article 10, it was said that any transition or removal of
indigenous people should only be with heir free and informed
consent. The representative expressed reservations with
regard to the term "territories". He also expressed
reservations with regard to Article 11, which was said to be
worded in a discriminatory way. However, it was said that
Chile does not have any problems with Article 11 (2) (a) and
(b).
168. The Government of Ukraine said it does not have
difficulties with Articles 6, 7, and 10, and that with
slight amendments they would be acceptable. However, the
representative said that her delegation is concerned with
the general tone of isolationism and a certain
aggressiveness of the draft declaration as a whole, a lack
of spirit of cooperation and dialogue between indigenous
peoples, governments and the international community. The
representative said that her delegation is of the opinion
that claims for preferential treatment for indigenous
peoples over others will not contribute to inter-ethnic
peace and understanding in any society. As to Article 11,
Ukraine stated that this article is in contradiction with
the Geneva Conventions of 1949 and with the their national
legislation.
169. The Government of the United States of America made
references to its detailed comments on Articles 6, 7, 10,
and 11 at the first session (1995) of the Working Group, and
reiterated its support for the basic thrust of those
Articles. He stated that Article 6 raises a collective
rights issue and that it might be rephrased to provide for
the protection of individual rights to security and
integrity exercised in community with others. The
representative also expressed concern that the terms
"ethnocide" and "cultural genocide" in Article 7 are not
clear concepts that can be usefully applied in practice. He
suggested that the provision could be rephrased to state
that indigenous people have a right to be free not only from
genocide but from actions aimed at destroying their rights
to belong to the group and enjoy their own culture, language
and religion. With regard to Article 11, it was said that
indigenous peoples should have the same right as non-
indigenous people to protection during time of conflict. He
also noted that the declaration should not derogate from the
Geneva Convention Rules.
170. The Government of Ecuador expressed its general support
for Articles 6, 7, 10, and 11. As to Article 6, Ecuador
suggested that the term "prosperity" should be included
after the phrase "to live in freedom, peace and security."
Moreover, it was said that the terms "distinct peoples" in
Article 6 and "territories" in Articles 7, 10 and 11 should
be clarified. With regard to Article 11, it was said that it
should be into line with the Geneva Conventions.
171. The representative of the International Organization of
Indigenous Resource Development, expressed his support for
Articles 6, 7, 10, and 11 by reading the present text of
those articles and suggesting that the present text should
be kept unchanged.
172. The representative of the Grand Council of Crees stated
his strong support for Article 10. He said that indigenous
peoples and communities have been time and time again
expelled from their lands or have had communities relocated
without their consent, and said that it is required with
protection under international law.
173. The representatives of the Chickasaw Nation, National
Aboriginal and Islander Legal Service Secretariat,
Aboriginal and Torres Strait Islander Social Justice
Commissioner, Central Land Council, New South Wales
Aboriginal Land Council, Asociacion Napguana, Chittagong
Hill Tracts Peace Campaign, World Council of Indigenous
Peoples, International Indian Treaty Council, Association
Nouvelle de la Culture et des Arts Populaires, Finno-Ugric
Consultation Committee, Cordillera Peoples Alliance, Indian
Confederation of Indigenous and Tribal Peoples, World
Council of Churches, Lummi Indian Business Council all
stated their strong support for Articles 6, 7, 10, and 11 as
currently drafted, and called for adoption without any
changes, amendments or deletions. It was also emphasized
that they consider Articles 6, 7, 10, and 11 as minimum
standards.
174. The representative of the Indian Law Resource Center
expressed her strong support for Articles 6, 7, 10, and 11.
She said that the different articles represent distinct
concepts. The representative referred to the concept of
"integrity" in Articles 6 and 7, and identified it as a
fundamental principle in this context. She said that the
integrity of indigenous peoples and nations has been
threatened throughout history. The representative said that
the grouping of articles can be harmful, due to the possible
deletion or diminishment of concepts or elements of concepts
in the articles. Moreover, she said that articles should not
be grouped in the future.
175. The representative of Movimiento Indio "Tupaj Katari"
proposed that the following articles should reads as
follows:
Art. 6. "Indigenous peoples have the collective and
individual right to live in freedom, peace and security as
distinct peoples and to full guarantees against any form of
genocide or any other act of violence.
States should undertake to guarantee the physical and
mental integrity of the individual, group and original
community against any type of genocide, including acts of
violence aimed at the forcible removal of indigenous
children from their families with the deliberate intention
of totally or partially destroying a historically
constituted social or ethnic group."
Art. 7. "Indigenous peoples have the collective and
individual right to security and protection against any
perpetration of ethnocide and genocide, acts condemned by
international instruments as crimes against humanity. This
protection, prevention and redress shall apply to:
(a) Any unlawful act which has the aim of depriving
indigenous nations of their own identity, infringing their
integrity and denying the legitimate rights to enjoy,
develop and transmit their cultural values to future
generations;
(b) Any practice of forcible assimilation, alienation
and integration into other cultures and ways of life
performed through pressure, intimidation
and even the use of force, in contempt of indigenous
cultures and philosophies;
(c) Any arbitrary dispossession of their lands,
territories and natural resources occupied and exploited by
indigenous peoples since time immemorial;
(d) Any forcible act of modern evangelization and
penetration of sects into aboriginal territories with the
intention of imposing on the original communities beliefs
and religions alien to their own which, by their nature and
their implications, are incompatible with indigenous vision;
(e) Any racist propaganda, incitement to hatred,
violence and intolerance which jeopardize the dignity and
lives of indigenous peoples and nations."
Art. 11. "Under the Additional Protocols to the Geneva
Conventions, indigenous peoples have the right to
appropriate protection and security in times of armed
conflict.
States shall respect the provisions of international
humanitarian law, in particular the Fourth Geneva Convention
of 1949, for the protection of civilian populations in time
of war, and shall not:
(a) Recruit indigenous individuals against their will
into the armed forces with the aim of fighting other
indigenous peoples;
(b) Prohibit in all circumstances the recruitment into
the armed forces of indigenous children and adolescents
under the age of 18;
(c) Force indigenous individuals to abandon their lands
and territories or relocate indigenous populations in areas
for military purposes, depriving them of their means of
subsistence;
(d) Force indigenous individuals to work against their
will for military purposes under conditions which are
discriminatory and detrimental to their health."
As to Article 10, the representative of Movimiento
Indio "Tupaj Katari said that due of its content and scope,
this provision should be inserted in the part relating to
lands, territories and natural resources.
ARTICLES 19, 20, 22 AND 23
176. The representative of the International Organization of
Indigenous Resource Development proposed language for
articles 19, 20, 22 and 23 by reading out the text of the
articles as adopted by the Sub-Commission. The
representative of the Indigenous World Association called
for the adoption of the articles in their present form
considering that they were valid rights of indigenous
peoples.
177. The representative of the Government of Mexico stated
that the articles under consideration dealt with some basic
aspects of the Working Group's work, namely the
participation of indigenous people in decision-making
processes that affect them. she stated that her Government
supported the basic principles in the articles and that
these were in line with efforts undertaken at the national
level. With regard to the second paragraph of article 22 she
stated that the use of language was important and suggested
replacing the word "impedidos" in the Spanish version with
"descapacitados".
178. The representative of the Government of Denmark and the
Home Rule Government of Greenland expressed full support for
the articles under consideration as they stood because they
represented the basic elements for the enjoyment of
political, civil, social, cultural and economic rights by
indigenous peoples. He stated furthermore that democracy,
development and respect for human rights and fundamental
freedoms were interdependent and mutually reinforcing.
179. The representative of the World Council of Indigenous
Peoples said that the element of free and informed consent
as laid down in the second paragraph of article 20 was an
integral part of the right to self-determination and crucial
for the relationship between indigenous peoples and
Governments on a basis of equality. He stated that this was
not a new concept and that it went beyond the individual and
was intrinsic to democracy.
180. The representative of the Government of Canada stated
that she understood that articles 19 and 20 were intended to
state the right of indigenous individuals to participate in
the general political processes of the States in which they
live without discrimination were consistent with other
international instruments including the International
Covenant on Civil and Political Rights. She stated however
that reading article 19 as meaning that indigenous
individuals have special rights in relation to matters that
affect them in the same way that they affect non-indigenous
individuals would not reflect the purpose of the article.
She stated that perhaps articles 19 and 20 could be combined
into one article reflecting the principle of the right to
participate fully in public affairs, including participation
in State decisions which directly affect certain areas of
particular concern to indigenous people and referred to
article 25 of the ICCPR and article 2 of the Declaration on
the Rights of Minorities as sources of inspiration. She also
stated that the right to an adequate standard of living as
laid down in article 22, the principle contained in article
11(1) of the International Covenant on Economic, Social and
Cultural Rights could be used as guidance. She stated
furthermore that in many countries, it was the sole
responsibility of the State to ensure that the rights of
children were respected and suggested the insertion of an
acknowledgment that indigenous communities may also play a
role in ensuring that the rights of indigenous children were
respected. With regard to article 23 she suggested that
attention be given to article 1 of the Declaration on the
Right to Development which described the content of the
right to development and acknowledged that it may be
exercised both individually and collectively. She said
however that article 2 of this Declaration stated that the
human person was central to the right to development and
should be the active participant and beneficiary of the
right.
181. The representative of the CIDSA expressed his support
for the draft as adopted by the Sub-Commission and said that
articles 19 and 20 were very important as a tool to avoid
escalation of situations where indigenous peoples were
subjected to decisions in which they had not participated.
182. The representative of the Lummi Indian Business Council
called upon the Working Group not to change the articles
under consideration in light of his concerns over the
political and social situation of indigenous peoples. He
said that indigenous peoples have the right to participation
as collectivities and added that their participation in
existing procedures was hampered by the overall economic
situation.
183. The representative of Sweden stated that two elements
should be reflected in articles 19 and 20. The first was
that indigenous people had the same rights as others without
discrimination as also reflected in the ICCPR, and the
second that indigenous people should participate in
decision-making processes whose outcome affect them. She
called the Canadian proposal of combining articles 19 and 20
into one article interesting. She suggested the insertion of
the phrase "where necessary" after the phrase "special
measures" in the first paragraph of article 22. She also
stated that the second paragraph of article 22 should be
directed more to vulnerable individuals and did therefore
not consider the listing exhaustive. She stated furthermore
that her Government had no major problems with article 23
but suggested the deletion of the word "all" in the third
sentence.
184. The representative of the Aboriginal and Torres Strait
Islander Commission indicated that there was a clear link
between article 19 and article 4. He stated that article 19
addressed two related but distinct rights, namely the right
to participate in decision-making and the right to develop
their own decision-making institutions. He said that the
former was affirmed in article 21(1) of the Universal
Declaration on Human Rights, article 25(a) of the ICCPR,
articles 2(2) and 3(3) of the Declaration on the Rights of
Minorities and article 6(1)(b) of ILO Convention 169 while
the former was recognized in article 6(1)(c). He continued
by stating that article 20 addressed the specific aspect of
decision-making in the context of devising legislative or
administrative measures. He said that a similar right was
contained in article 6(1)(a) of ILO Convention 169. He
opposed the deletion of the phrase "free and informed
consent" with the argument that the historical and
contemporary marginalisation and often small numbers in
society of indigenous peoples meant that the normal
operation of a democratic system of Government did not
necessarily allow for adequate expression of indigenous
perspectives. He stated that article 5 of the Convention on
the Elimination of All Forms of Racial Discrimination and
certain provision of ILO Convention 169 were affirmation of
the article 22. He also referred to article 1 of the
Declaration on the Right to Development, article 7(1) of ILO
Convention 169 and article 22(1) of the African Charter on
Human and Peoples' Rights as being related to article 23.
185. The representative of the Government of Japan stated
that he shared the concerns expressed by Canada on articles
19 and 20. he said that article 22 was unclear in comparison
with article 1 of the International Covenant on Economic,
Social and Cultural Rights and wondered what was meant by
the phrase "special measures". With regard to article 23 he
stated that the wording was very wide considering that
economic and social rights are generally realized by
national policies and actions.
186. The representative of the New South Wales Aboriginal
Land Council stated that articles 19 and 20 contained
manifestations of the right of self-determination. He said
that participation on the basis of consent, recognition of
indigenous institutions, and the right to develop their own
institutions were part of this. The representative of the
International Organization of Indigenous Resource
Development called for adoption of the articles as they
stood and said that they reflected the right of self-
determination.
187. The representative of the Government of Fiji stated
that both her Government and the participants at the Suva-
Workshop supported the articles as adopted by the Sub-
Commission. She said that the draft was a declaratory
instrument whose implementation was up to the Governments
but hoped that these would provide the necessary resources
and provisions necessary to promote positive discrimination.
She added that the draft did not create special rights for
indigenous peoples but merely provisions that ensured that
indigenous peoples had equal rights. The representative of
the Government of Bolivia stated that his Government
supported adoption of the articles as they stood as soon as
possible.
188. The representative of the Government of Malaysia fully
supported the special measures enumerated in article 22. He
also supported article 23 but with the qualification that it
was exercised through the institutions and agencies
established for this purpose. With regard to article 19 he
stated that his delegation found the scope of the phrase "to
maintain and develop indigenous decision-making
institutions" unclear and sought clarification on this
point. He stated that his Government could support article
20 subject to modification as in practical terms the right
to participation in devising legal and administrative
measures could not extend to participation in the
legislative and executive bodies without observance of the
necessary procedures. He supported the inclusion of the
phrase "free and informed consent" but noted that this
required the establishment of an appropriate mechanism for
consultation.
189. The representative of the Government of France
expressed his concern about articles 19, 20 and 23 which, in
his opinion, created special rights and raised questions of
sovereignty and over article 19 which gave indigenous
peoples a right of veto. He also shared the concerns
expressed by Canada and Japan.
190. The representative of the Government of Chile stated
that his Government could support article 22. He also stated
that articles 19, 22 and 23 shared certain conceptual points
which were at present somewhat ambiguous. He said that, in
order to enhance the exactness of the wording, safeguard the
objectives of the articles and avoid the existence of
diverging interpretations of the articles, their language
had to be adjusted.
191. The representative of China expressed his support for
the articles under consideration and stated that article 19
could be strengthened by inserting a phrase to the effect
that States should take relevant measures to ensure that
indigenous peoples participate.
192. The representative of the Central Land Council
commented on a general trend she had detected among
Governmental delegations that felt that recognition of
collective rights was something new and dangerous. She said
that collectives rights were already recognized in
international law and referred in this respect to the right
of self-determination, rights related to international peace
and security, right of permanent sovereignty over natural
resources, the right to development, rights related to the
environment, the rights of minorities, and rights related to
the existence of groups such as those protected by the
Genocide Convention. She said that the draft had been
elaborated because existing human rights law did not protect
indigenous peoples and that therefore the argument put
forward by Governments that guarantees in international law
already existed were meaningless.. She considered the
provisions of article 19 essential but said that States
should make indigenous participation effective through
administrative measures. She said that the second paragraph
of article 20 was essential to stop continuing colonial
domination. She said that special measures as laid down in
article 22 were necessary to put right past and present
wrongs. She also stated that article 23 would be good
protection against changes of Governments and ideologies.
She concluded by stating that these were minimum standards.
193. The representative of the Association Nouvelle de la
Culture et des Arts Populaires referred to the name of the
Working Group as an indication of the non-recognition of the
rights of indigenous peoples. He also stated that
international law prevailed over national law and that
therefore he did not understand why Governments invoked the
argument that their national laws were not in conformity
with the provisions of the draft. He said that the
provisions were minimum standards and called for their
adoption.
194. The representative of the Government of Brazil stated
that his Government had no difficulty with article 19 in its
present form. He said he agreed with the principle goal of
article 20 but believed that the language could be improved
to emphasize this goal. He suggested the following language:
"Indigenous people have the right to participate fully,
if they so choose, in the discussion of legislative
and administrative measures that may affect them."
"States shall consult the peoples concerned, whose
informed opinion shall be expressed freely, before
adopting and implementing such measures."
195. The representative of Brazil also supported the spirit
of article 22 and suggested the insertion of the phrase
"inter-alia" before the phrase "in the areas", since this
list of areas should not be limited. He said his Government
also considered it important to include a reference to the
educational area in this list, consistent with articles 15
and 16 of the draft. He said his delegation recognized the
right contained in article 23 and suggested, with a view to
provide the article with legally appropriate language, to
replace the phrase "the right to determine" with the phrase
"the right to active and informed participation" in the
second sentence.
196. The representative of the Government of Colombia said
that indigenous peoples should, on the basis of their
collective features, participate as collectivities and that
these features warranted the development of special and
distinct ways of participation. She therefore supported the
general thrust of articles 19, 20, 22, 23 and 24. With
regard to article 22 she agreed with the representative of
Mexico to replace "impedidos" with "descapacitados" in the
Spanish version. She suggested the addition of the phrase
"and according to their own cultural systems" at the end of
article 23. She also suggested adding the phrase "States
shall endeavour to ensure cultural diversification ...... "
at the end of article 24.
197. The representative of the Government of Australia
stated that the articles under consideration were closely
related to the broader issue of self-determination.
198. The representative of the Government of Ecuador stated
that the special measures referred to in article 22 were
applicable to all citizens of a State. He supported the
replacement of the phrase "impedidos" with the phrase
"descapacitados" in the second paragraph of article 22. With
regard to article 23, he said that programmes developed with
regard to the right of development had to be carried out
through the competent national authorities.
199. The representative of Norway supported the general
thrust of the articles under consideration although he
suggested the deletion of the phrase "if they so choose"
since article 21 of the Universal Declaration on Human
Rights and article 25 of the ICCPR did not confer an
unconditional right of participation. With regard to article
19 he requested clarification of the phrase "in accordance
with their own procedures". He said he supported the
reference to special measures in article 22 but that these
had to be limited to specific areas. He said his Government
supported article 23 since it was similar to article 7(1) of
ILO Convention 169.
200. The representative of the Chittagong Hill Tracts Peace
Campaign stated that the denial of the rights under
consideration would have serious practical effects for
indigenous peoples and therefore called for their adoption
as drafted. He said that consultation was not the same as
consent.
201. The representative of the Government of the United
States of America supported the goal of article 19 to the
extent it attempts to ensure that indigenous people may
participate effectively in decision-making at the national
and local level, particularly with respect to decisions
directly affecting them. He said that there was a need for a
strong recognition of the importance of democratic processes
in the declaration. He called for the revision of article 20
to bring it in line with international law but said he
supported the basic principles. Furthermore, he said that
special measures (article 22) may be appropriate when
indigenous people are in a disadvantaged position in
comparison with the rest of society but said that
entitlement to such special measures was not a right under
international law. He endorsed article 23 in so far as it
was in line with the Vienna Declaration and Programme of
Action but did not feel that it was appropriate to recognise
collective development as a right. The United States of
America does not accept in an international context the
right to development of States or groups.
202. The representative of the International Organization of
Indigenous Resource Development proposed language for
articles 4, 8, 21 and 33 by reading out the text of the
articles as adopted by the Sub-Commission. The
representative of the Indigenous World Association called
for the adoption of the articles in their present form
considering that they were valid rights of indigenous
peoples.
203. The representative of the International Indian Treaty
Council stated that the draft should be adopted as it stood
considering that it reflected the minimum standards of
protection of the rights of indigenous peoples and said that
as an integral part of the declaration the articles under
consideration should not be changed.
204. The representative of the Indigenous Woman Aboriginal
Corporation in a joint statement with two other Aboriginal
organizations stated that the element of self-identification
as contained in article 8 was widely recognized as being
fundamental to the exercise of the right of self-
determination and could therefore not support any revision
of the existing text. She said that articles 19 and 20 were
relevant with regard to article 4 which must be viewed in
light of the universally accepted notion that human rights
are universal, indivisible and equal. She said there was an
obvious demonstrable link between respect for indigenous
characteristics and respect for indigenous institutions and
said that there was a clear link between article 21 and
article 8. She stated that the provision "in accordance with
internationally recognised human rights standards" in
article 33 may be interpreted to mean that indigenous
peoples do not possess rights to develop their own
institutions unless they were in accordance with
international human rights law. She said that, as a matter
of principle, this was discriminatory in so far as other
peoples were nor subjected to the same restriction. She
reiterated that she considered indigenous peoples bound by
international human rights law.
205. The representative of the Government of France stated
that the articles under consideration were redundant, vague
and mixed civil with collective rights. He said that his
delegation wished to see the reference to human rights in
article 33 retained.
206. The representative of the Central Land Council stated
that the element of self-identification in article 8 was
essential and recalled the conclusion of the Chairperson-
Rapporteur of the Working Group on Indigenous Populations in
her note on the concept of indigenous peoples that a
definition of indigenous peoples was neither possible nor
desirable. She urged strongly to retain the reference to
indigenous legal systems in article 4 and to the word
"customary" in article 33. She also said that article 21
should not be rejected simply out of fear of the possibility
of claims for compensation.
207. The representative of the Government of Norway stated
that his Government strongly supported the ideas behind the
articles under consideration. He said that effective
indigenous participation in decision-making at all levels
was crucial. He said that the idea of participation was
contained in article 21 of the Universal Declaration on
Human Rights, article 25 of the ICCPR and article 6 of ILO
Convention 169. He said that in some areas though he would
like to see some clarifications and referred in this respect
to the phrase "in accordance with their own procedures" in
article 19, and the phrase "free and informed consent"
contained in article 20 which had been identified by some
speakers as giving indigenous peoples a right of veto. He
said his delegation supported the concept of special
measures in article 22 but felt that these should be
reserved for overcoming effects of situations of
disadvantage as was the case in article 1(4) of the
Convention on the Elimination of Racial Discrimination. He
also stated that he could support the concept reflected in
article 23 which to a large extent was also reflected in
article 7(1) of ILO Convention 169. He said that Norway
supported the idea that distinct groups had the right to
maintain their characteristics since this was already
present in article 27 of the ICCPR, article 30 of the
Convention on the Rights of the Child and in the Declaration
on the Rights of Minorities. Finally, he referred to the
Technical Review that suggested that there was overlap
between articles 4 and articles 8, 21 and 33.
208. The representative of the Government of Sweden also
referred to the Technical Review and the possible overlap
between the articles under review. She said that the element
of self-identification as reflected in article 4 was
important and that there was a link between article 4 and
articles 19 and 20. She said that articles 21 and 23
overlapped with other articles of the draft and suggested
consideration thereof. She also stated that the reference to
human rights in article 33 was very important.
209. The representative of the Government of China supported
the articles under consideration. He said that in article 4
emphasis should be put on the phrase "of the State" and
referred in this respect to articles 19 and 20. With regard
to the element of self-identification contained in article 8
he stated that indigenous peoples are indigenous peoples
whether they identified themselves or were identified and/or
recognized by others. He compared the elaboration of the
declaration with building a house without knowing who was
going to live in it considering that the draft did not
contain a definition. He therefore called for the insertion
of a procedure for recognition.
210. The representative of Malaysia stated that his
Government could accept the wording of articles 8 and 33 as
drafted. With regard to article 4 he said that he could not
accept the existence of a legal system parallel to that of
the State. He also said that his delegation could, in
principle, accept articles 21 and 33 and that his delegation
did not have any proposals at this time.
211. The representative of the Government of Canada stated
that he supported the principles contained in articles 4 and
8. He also referred to an overlap between the articles under
consideration as suggested by the Technical Review. He said
that self-identification and community acceptance were
important elements and referred in this respect to article
9. He said that his Government supported the principle of
self-government contained in article 21 but wondered how
responsibilities could be shared with Governments. He also
said that article 31 was linked to article 21 and could
therefore be combined and placed in Part VII. With regard to
the second sentence of article 21 he asked for clarification
on how far back the right to compensation would apply
considering that usually international law is not
retroactively applicable. He also noted that there was no
indication of the cause of deprivation for which
compensation had to be provided. He said that article 33
could be combined with article 31 since they both dealt with
self-government.
212. The representative of Colombia expressed support for
the articles under consideration as a whole and emphasized
the importance of the right of indigenous peoples to respect
for their own juridical systems.
213. The representative of the Government of Mexico
suggested inserting in article 4 the phrase "without
detriment to the" after the phrase "if they so choose" and
deleting the word "in".
214. The representative of the United States of America
believed it important to emphasize that all indigenous
people have the right to maintain and develop distinct
ethnic, social and cultural, characteristics including a
right to self-identification and viewed the refusal of this
right by States a serious human rights violation. He said
his Government also endorsed the concept that indigenous
people should be able to participate in the political,
economic, social and cultural life of the State. His
Government felt, however, that certain aspects of these
articles needed to be reformulated. He also said that his
Government supported the goals embodied in article 21 but
noted that certain of the provisions needed to be narrowed
and clarified.
215. The representative of the Lummi Indian Business Council
called upon the Working Group to adopt the articles under
consideration as drafted considering that the rights therein
were inherent.
216. The Aboriginal and Torres Strait Islander Social
Justice Commissioner in a joint statement with two other
Aboriginal organizations said that he had some difficulties
in discerning a common theme when considering articles 4, 8,
21 and 33 which suggested the need for a consensual approach
to the methods of work of the Working Group. He considered
the articles to be absolute minimum standards and urged
their adoption without amendment. With regard to indigenous
legal systems and juridical customs as laid down in article
33 he referred to article 8 and 9(1) of ILO Convention 169.
He said that recognition of indigenous laws and customs was
not only an issue of indigenous heritage and pride but could
also be an issue of survival considering that they were an
inseparable part of their identity. He also said that this
recognition was not equivalent to being sensitive to or
making allowances in their legal process for the difference
of the various ethnic groups now making up Australia. He
noted that self-identification as laid down in article 8 was
widely recognized in international human rights law and
referred in particular to article 1(2) of ILO Convention 169
as well as the General recommendations and articles 8 and 9
as well as article 4 of the International Convention on the
Elimination of All Forms of Racial Discrimination. He said
that article 21 recognized the right of indigenous peoples
to be secure in the enjoyment of their means of subsistence
and to engage in traditional and other economic activities.
He referred to related provisions of international human
rights including article 25 of the Universal Declaration of
Human Rights, article 11 of the ICESCR, article 12 of the
Convention on the Rights of the Child and articles 2(1),
14(1) and 23 of ILO Convention 169. He said he did not
understand the difficulties States had in contemplating
compensation for gross and systematic violations of human
rights considering that the international community clearly
recognized the existence of such an obligation. He referred
in this respect to the jurisprudence of the Human Rights
Committee under the Optional Protocol, the jurisprudence of
the Inter-American Court of Human Rights in the case of
Aloeboetoe v. Suriname and the Revised set of basic
principles and guidelines on the right to reparation for
victims of gross violations of human rights and humanitarian
law prepared by Special Rapporteur Theo van Boven.
217. The representative of the Government of the Russian
Federation stated that the language of article 4 was
acceptable provided that the ways and means were clarified.
She also stated that self-identification contained in
article 8 was acceptable as a principle as long as the
demands of national legislation were taken into account and
it did form in impediment. She stated that article 21 should
be considered jointly with article 31 and that the "systems"
referred to should be discussed within their national and
local setting. She said that article 33 was acceptable
provided that the institutions referred to were compatible
with those existing within the State structure.
218. The representative of the Government of Japan stated
there had to be equality before the law in a State and this
posed a problem with regard to accepting separate "legal
systems" as referred to in article 4. He also considered the
collective right contained in article 8 as problematic. With
regard to article 21 he said that compensation was regulated
under national law and called for qualifying article 31.
219. The representative of the Government of Australia
stated that his Government had no serious problems with
articles 4 and 33 but requested clarifications concerning
the meaning of "political and legal systems". With regard to
article 8 he also stated that this did not constitute any
serious problem and reiterated the futility of finding an
all embracing definition of indigenous peoples and said that
applicability should be left to national determination.
220. The representative of Chile stated that the groups of
articles under consideration highlighted the importance of
preserving the customs and traditions of indigenous people.
He felt however that article 4 needed more detail and
clarification with regard to the scope of the political and
juridical institutions contained in this article. He
supported the current drafting of article 8 and the spirit
of articles 21 and 33. He felt in general that the final
draft should have greater clarity.
221. The representative of the Indian Confederation of
Indigenous and Tribal Peoples said it was distressing that
several Governments had stated that the provisions of the
draft should be in conformity with international human
rights law and domestic legislation. He said that the draft
looked to the future and that international and domestics
laws would have to work towards the same level. He urged the
Working Group to adopt the draft as is stood, especially
articles 4 and 8 since they were crucial for the survival of
indigenous peoples.
222. The representative of the Grand Council of the Crees
stated that the words "maintain and develop" were very
important since they recognized that indigenous peoples'
societies were not frozen in time but like any other society
an evolving entity. He opposed combining articles 21 with
article 31 since one dealt with development and subsistence
while the other dealt with self-government. He said that the
question on how far back compensation had to be paid was the
same as asking how far back law applied. He also said that
the argument that international law did not apply retro-
active did not hold ground since compensation was by
definition retroactive.
223. The representative of the Government of Ukraine said
that the implementation of article 4 could lead to the
existence of contradicting legal systems. She said that
there was a possible overlap between article 4 and articles
8, 21 and 33. With regard to article 8 she said that
criteria were necessary.
ARTICLES 25 AND 26
224. The representative of the International Organization of
Indigenous Resource Development proposed language for
articles 25 and 26 reading out the text of the articles as
adopted by the Sub-Commission.
225. The representative of the MAA Development Association
called for the adoption of articles 25 and 26 as they stood
considering that the ownership and control of lands,
territories and resources were essential to the exercise of
the right of self-determination and health of indigenous
communities. He recommended that indigenous peoples, as a
birth right take control of lands, sacred lands be excluded
form licensing or sale, indigenous peoples be compensated
for loss of their lands, indigenous peoples proceed in
accordance with their own values, social structures and at
their own pace in developing their lands and that States
should enact legislation to ensure that there were no
prospecting activities on indigenous lands without their
consent.
226. The representative of the Grand Council of the Crees
stated that article 25 was intended to preserve and
strengthen the intimate relationship indigenous peoples have
with their lands and territories which connected the use of
lands and resources with a responsibility to care for and
preserve those resources for future generations. He said
that the phrase "which they have traditionally owned or
otherwise occupied or used" was employed to avoid the
technical objection put forward by some States, that
indigenous peoples did not have proper title to their lands
and therefore no land rights. He also said that article 26
elaborated upon and implemented article 25 in a way
consistent with Agenda 21 of the United Nations Conference
on Environment and Development. He said that clearly the
matters dealt with in articles 25 and 26 required protection
under international law.
227. The representative of the International Indian Treaty
Council stated that land was indigenous peoples' sacred
mother, life giver and the source of their survival and that
therefore article 25, 26 and 3 were the heart and soul of
the draft. She therefore called for the adoption of these
article as drafted considering that they were an integral
part of a draft declaration which reflected the minimum
standards of protection of the rights of indigenous peoples.
228. The representative of Sweden recognized the intimate
relationship indigenous peoples had with their lands and
therefore supported the inclusion of such recognition in the
declaration. She stated however that the declaration should
reflect that there are many different forms of land rights
in the world. She said that she would like to discuss
further the meaning of the word "strengthen" as contained in
both articles 25 and 26 and suggested replacing the phrase
"own, develop and use" in the first sentence of article 26
with the phrase "own, develop or use". The representative of
Australia agreed with the intent of articles 25 and 26 but
said that a closer look was warranted in light of law and
practice.
229. The representative of the Upper Sioux Community stated
that the draft was aimed at expanding the applicability of
human rights so as to include indigenous peoples and sought
to redress the violation of the individual and collective
rights of indigenous peoples. He also said that self-
determination was an inherent right of all peoples.
Therefore, he called for the adoption of articles 25 and 26
as they stood.
230. The representative of Canada stated that lands and
resources were of fundamental importance to indigenous
peoples and that the declaration must reflect this
importance while at the same time take into account the many
different land arrangements that exist universally. She said
that the French text of articles 25, 26 and 28 did not
correspond with the English text. She also said that the
terminology of article 25 needed more discussion. She
recognized that the term "lands" would refer to those areas
which indigenous people may own or have exclusive use of and
the rights to resources thereon, while the term
"territories" would refer to those areas where indigenous
people did not own and did not have exclusive use of but
where they may conduct their traditional life-style in
accordance with domestic law. She considered that article 26
was one of the more complex provisions. She felt that the
recognition of laws, customs and traditional land tenure
systems and institutions was related to self-government and
should be considered in this context.
231. The representative of the Government of the United
States of America stated that his Government supported the
goal embodied in article 25 but said that its language was
over broad and imprecise. He said his Government would
endorse a provision encouraging States to protect the
distinct spiritual relationship and material relationship
which exists between many indigenous groups and their lands,
territories, waters and other areas. He also expressed his
support for the general goals set forth in article 26. He
stated however that the approach of article 26 to cover all
the many different situations involving indigenous land
claims in every part of the world was overly broad. He said
that, for example he could not agree with the blanket
statement "traditionally owned or otherwise occupied or
used" which authorized ownership of all lands. He said that
his delegation did support including language calling upon
States to consider the possibility of negotiated land
settlements.
232. The representative of CAPAJ said that one should not
place a rigid limitation on the special aspect of
territories since the relationship indigenous peoples had
with their territories and the environment transcended space
and time. He said that indigenous peoples must be able to
manage their resources since this would allow them to
control their lives and future. He said that therefore
restitution of territories was of crucial importance.
233. The representative of the Government of Japan stated
that the phrase "distinctive spiritual and material
relationship with the lands, territories, waters and coastal
seas and other resources" as laid down in article 25 was
unclear to his delegation and should be qualified. With
regard to article 26 he pointed out that the use of land is
prescribed by national legislation.
234. The representative of the Indigenous World Association
called for the adoption of the articles in their present
form considering that they were valid rights of indigenous
peoples. The representative of the World Council of
Indigenous Peoples said that lands and territories were the
foundation of the survival of indigenous peoples and that
this link was recognized by the ILO and the Organization of
American States. He expressed his agreement with articles 25
and 26 since they laid down the non-validity of the concept
of "terra nullius".
235. The representative of the Organisation for Survival of
Illaikipiak Indigenous Maasai Group Initiatives urged the
Working Group to adopt articles 25 and 26 as currently
drafted since they were of vital importance to the draft
declaration which in turn determined the future of
indigenous peoples.
236. The representative of Finland stated that his
Government could accept article 25 but that article 26
should be flexibly drafted to allow for national solutions
for the ownership of lands. The representative of the
Government of Norway noted with respect to all the articles
that dealt with land rights in the draft, including articles
25 and 26, that land rights are one of the areas where it
was essential to find flexible language which could
accommodate the various land rights situations in the world.
He said however that this flexibility must be accompanied by
strong protective language
237. The representative of the Government of Fiji referred
to paragraph 33(f) of the Copenhagen Declaration on Social
Development which said that States should recognize
indigenous peoples lands. He also referred to paragraph
75(g) of the same document which referred to the empowerment
of indigenous peoples to take decisions in matters
concerning them and considered this recommendation relevant
to article 4.
238. The representative of the International Alliance of
Indigenous and Tribal Peoples of the Tropical Forests stated
that indigenous lands and knowledge were seen as
commodities. Since for indigenous peoples their life was
tied to their lands he called for the adoption of articles
26 to 30 as they were currently drafted. He called on States
to decentralize so that indigenous peoples could contribute
to solving problems of poverty and the environment. He felt
peaceful existence through agreements with Governments was
possible.
239. The representative of the Movimiento Indio Tupaj Katari
said that the problems of indigenous peoples could not be
solved without solving the problems of indigenous lands,
territories and resources since these were crucial to their
survival. He also said that it would be impossible to solve
these land questions without fully understanding the
problems related to the globalization of trade, the
activities of transnational corporations which he considered
to be in violation of the right of permanent sovereignty
over natural resources. He said that articles 25 and 26 had
to strengthened.
240. The representative of the Finno-Ugric Consultation
Committee stated that lands and territories were vital to
the survival of indigenous peoples and called for the early
adoption of the articles under consideration as did the
representative of the Association Nouvelle de la Culture et
Des Arts Populaires. The representative of the International
Organization of Indigenous Resource Development also called
for the adoption of articles 25 and 26 considering that an
adequate land base was essential to the survival of
indigenous peoples and expropriation the most powerful tool
of destruction. He suggested language for the articles by
reading out the text as currently drafted.
241. The representative of the New South Wales Aboriginal
Land Council in a joint statement with several other
Aboriginal organizations said that the articles under
consideration should be analysed within the context of the
draft declaration as a whole. He said that the draft
contained aspirations and should not be the lowest common
denominator. In light of this he called for the adoption of
the articles as drafted.
242. The representative of the Central Land Council stated
that articles 25 and 26 were essential to the draft as a
whole considering that the absence of indigenous control
over their lands was the cause of the situation they were
in. She supported the assertion that national law was not
relevant in this respect. She said that the phrase "other
resources" as found in both articles was very important
considering that indigenous peoples' knowledge was under
threat from multinational companies. She stated that
indigenous peoples should be recognized as guardians of
their lands.
243. The representative of the Government of Brazil stated
that his Government had no difficulties with the principles
contained in articles 25 and 26 but suggested using the
present tense of the phrase "owned or otherwise used or
occupied".
244. The representative of the Confederacion Sindical Unica
de Trabajadores Campesinos de Bolivia stated that the
affirmations contained in articles 25 and 26 were correct
and should be retained as drafted. He said that indigenous
peoples were alive thanks to the respect they had for their
lands and the environment and that this was affirmed by
article 15(1) of ILO Convention 169. The representative of
the MAA Development Association stated that the issue of
land rights was a delicate, complex and sensitive issue
since it affected directly the livelihood of indigenous
peoples. He said that indigenous peoples were uniquely
qualified in the area of preservation and called for the
adoption of the articles under consideration as they were
currently drafted.
245. The representative of the Indigenous Law Resource
Center stated that the grouping of articles was harmful
since it lead to deletions and amendments. She said the
draft consisted of 45 distinct articles that had to be
analysed within the framework of the draft as a whole. She
said that therefore a general dialogue on the fundamental
issues was necessary. She also said that articles 19 on
participation and article 20 on consent were in substance
and procedure also applicable to the Working Group. She
fully supported articles 23, 4 and 8 and said with regard to
articles 25 and 26 that the relationship indigenous peoples
had with their land was unique among the peoples of the
world.
246. The representative of the Consejo de Todas las Tierras
said that indigenous territories were the means through
which indigenous peoples transferred their culture and that
articles 25 and 26 recognized this. He also said that it
would not be appropriate to consider these articles within a
legal framework since they would then be considered a threat
to States but rather within a framework of cultural
diversity and universal reality.
247. The representative of the Ainu Association of Hokkaido
stated that the distinctiveness of indigenous peoples does
not have to be measured by any one else than indigenous
peoples and said that articles 25 and 26 were a vital part
of the draft and should be adopted as they were drafted.
248. The representative of the Aboriginal and Torres Strait
Islander Commission stated that articles 25 and 26
recognized the unique relationship indigenous peoples had
with their land and resources which were of critical
importance for their survival and the exercise of the right
of self-determination. He said that article 25 stated the
obvious and confirmed existing human rights law and referred
in this respect to article 17 of the Universal Declaration
on Human Rights, article 5 (III) of the Convention on the
Elimination of Racism, the General Comment of the Human
Rights Committee on article 27 of the ICCPR and article 31
of ILO Convention 169. He concluded that article 26
elaborated and implemented article 25 and that both should
be adopted as they stood.
ARTICLES 27, 28 AND 30
249. The representative of the International Organization of
Indigenous Resource Development proposed language for
articles 27, 28 and 30 by reading out the text of the
articles as adopted by the Sub-Commission. The
representative of the Indigenous World Association called
for the adoption of the articles in their present form since
the were valid rights.
250. The representative of Ukraine expressed her
reservations regarding articles 25 to 28 and 30 and said
that land rights had to be placed in the context of national
legislation to avoid confusion especially with regard to
non-colonial situations.
251. The representative of the Government of France stated
that his Government had serious difficulties with article 27
because of the legal and practical implications of the
phrase "compensation shall take the form of lands,
territories and resources equal in quality, size and legal
status" He said that the lack of nuance in article 28
implied that indigenous peoples had a right of veto.
252. With regard to article 27, the representative of the
Government of Sweden called for clarifications of the phrase
"free and informed consent" and the possible retroactive
application of compensation. In connection with article 28
she said that the role of indigenous peoples in
environmental conservation had been recognized in Chapter 26
of Agenda 21. She requested however clarification with
regard to the term "military activities". She continued by
saying that the second paragraph of article 28 was very
important but said that activities covered by the article
could be undertaken when done procedurally and in special
circumstances. With regard to the third paragraph she said
that health issues were also covered by other articles and
referred to article 19.
253. The representative of Colombia stated that the articles
under consideration were linked to articles 25 and 26. She
said that her Government agreed with their wording since
they were in line with domestic law and practice. She said
that the concept of "territories" was compatible with the
notion of unified States which allowed for diversity. The
representative of Japan said that the use of land was
subject to national discretion.
254. The representative of the Grand Council of the Crees
stated with regard to article 27 that a thief never rested
comfortably and securely with his loot since the ownership
and title of something that was obtained under questionable
circumstances was tainted. He said that the function of
article 27 was to reverse the process of dispossession by
returning something to the original owners and where this
was not possible compensate for its loss. He said that
although article 28 appeared to deal with seemingly
unrelated issues, the unity of theme was that all the
elements of article 28 were part of the continuing
destruction of the total environment, lands and territories
of indigenous peoples. He said that article 28 attempted to
prevent this abuse and reverse the damage done. He also
stated that article 30 attempted to reverse the "development
syndrome", whereby indigenous ownership rights to lands and
resources are disregarded to allow for development, by
recognizing the right of indigenous peoples to give or
withhold consent.
255. The representative of the Lumad Mindanaw Peoples
Federation called for the adoption of the articles under
consideration as they stood. He said that the intent of the
draft was to establish equality in the enjoyment of human
rights and that the exercise of the collective right of
self-determination was a pre-condition for the survival of
indigenous peoples. The representative of the Lummi Indian
Business Council also called for the adoption of the
articles as the were.
256. The representative of the Organizacion de la Nacion
Aymara stated that it was very important to know what the
contents of the draft was so as to avoid confusion when
analysing the articles. He said that its contents was a
declaration of rights but rather aimed at the reparation and
restitution of rights. He said speedy adoption was necessary
since peoples were disappearing.
257. The representative of the Mejlis of Crimean Tatar
People said that all the articles had a distinct meaning. He
said he supported their adoption as currently drafted and
called for the insertion of implementation mechanisms. The
representative of the Association Nouvelle de la Culture et
Des Arts Populaires pondered on the importance of the
recognition of the concept of "identity" and called for the
adoption of the articles as they stood.
258. The representative of the Government of Canada stated
that his Government felt strongly that adequate processes
for dealing with land claims and related resource issues
should be available for indigenous groups. He said that
States should provide arrangements for dealing with valid
claims and consideration should be given to a reference to
this effect in article 27. With respect to compensation he
said that consideration might also be given to alternatives
other than the ones mentioned in the article. With regard to
article 28 he said that consideration might be given to
separate the environmental from the military issues dealt
with in article 28. He said that the article needed to
reflect international as well as domestic standards on
environmental matters and therefore the article might
indicate that indigenous people have the right to the
productive capacity of their lands. With regard to the
second paragraph of the article he said that some groups may
be willing to accept hazardous materials on their lands as a
means, for example, of generating economic activity on the
condition of full and informed consent. He said that the
same was true for military exercises.
259. The representative of the Government of Brazil stated
that his Government had no difficulties with the inclusion
of article 27 in the declaration since it was consistent
with national law and practice. He said that Brazil
supported the goal of article 28 but pointed out that in his
country the military had played a positive role in the
protection of indigenous people and therefore called for
revision of the second sentence of the first paragraph of
the article. With regard to the third paragraph of this
article he suggested that its wording reflect the idea that
indigenous people should have active and informed
participation in programmes for monitoring, maintaining and
restoring their health. With regard to article 30 he
believed that, although his Government supported the idea,
it would be more appropriate, form a legal point of view, to
affirm that indigenous people have the right to require that
States take account of their free and informed opinion in
the approval of any project affecting their lands and their
resources. Finally, he stated that his Government was of the
opinion that the concept of "spiritual impact" was included
in "cultural impact" and could therefore be deleted.
260. The representative of the Government of the United
States of America noted that article 27 overlapped with a
number of other provisions, including article 7(b), 10 and
26 and some of these articles could therefore be
consolidated in order to clarify and strengthen the text.
With respect to these articles, the United States supported
a clear recognition of the right of ownership and possession
over lands or property which indigenous people occupy or
possess, and of the necessity of adequate legal procedures
to ensure that claims of confiscation or use were fairly
resolved but doubted whether restitution was a viable means
for resolving such issues in most States. With regard to
article 28 he said that it could not be assumed that States
were absolute environmental guarantors and felt it would be
more appropriate to urge States to take measures to help
indigenous communities preserve their environment. He said
that article 30 could be improved by encouraging the design
of governmental regulatory processes affecting large-scale
projects whereby the people affected have substantial input
into the decision-making process.
261. The representative of the International Indian Treaty
Council stated that the articles under consideration should
be adopted as they stood considering that they were an
integral part of the draft she considered a minimum standard
for the protection and promotion of the rights of indigenous
peoples. She stated that negotiated settlement was a process
whereby two equal parties freely entered into an agreement
on the basis of their free and informed consent and that
therefore a Government could not be negotiator and judge at
the same time. Articles 36. 37. and 39
262. The Government of Sweden said that in order to move
towards giving full effect to the provisions in the draft
declaration greater clarity and a more distinct legal
language are necessary in many of the articles. She also
said that some legal concepts in the draft would have
implications for governments beyond this draft declaration,
if those concepts were not defined or restricted.
263. The Government of Canada stated that Article 36 which
is dealing with the recognition and enforcement of treaties
and agreements between States and indigenous people is an
important provision of the draft declaration. Canada also
emphasized that valid treaties and agreements should be
honoured. However, it was said that their own treaties with
the indigenous people of Canada were domestic rather than
international agreements, and disputes over their
interpretation or implementation should therefore be dealt
with in domestic fora. The representative said that his
government acknowledges that "original spirit and intent" is
an issue in treaty interpretation, and that the
interpretation must reflect the intent of both parties.
However, it was said that Canada has reservations with
regard to the reference to "spirit and intent" in Article 36
as the fundamental criterion for interpretation of treaties,
and that it therefore should be made clear that "spirit and
intent" is only one of a number of factors that need to be
considered when dealing with such treaties. As to Article
37, Canada expressed the view that the provisions of the
declaration should give guidance to States, and not impose
mandatory measures. It should recognize the obligation on
States to take effective measures as appropriate, to the
maximum of their available resources, and in consultation
with indigenous people. It was said that such flexible
implementation would be consistent with the provisions
included in Article 34 of ILO Convention No. 169 and Article
2 of ICESCR. With regard to Article 39, it was said that
Canada supports the principle that domestic legal processes
shall take into account the customs and traditions of
indigenous people where appropriate, including both criminal
and civil law and a broad range of dispute resolution
methods. It was said that the question of indigenous "legal
systems" is one which should be the subject of negotiations
between States and indigenous people.
264. The Government of Finland expressed its full support
for Articles 36, 37, and 39. As to Article 37, it was said
that Finland is of the opinion that the rights recognized in
the future declaration should be adopted and included in
national legislation.
265. The Government of Colombia expressed its support for
Articles 36, 37, and 39. As to Article 37, reference was
made to Article 6 of ILO Convention No. 169. With regard to
Article 39, the representative emphasized the importance of
the second part of this article and proposed that the words
"with priority" should be added between the words "take into
consideration" and "the customs" in the last sentence.
266. The Government of Venezuela expressed reservations with
regard to the words "to competent international bodies" in
Article 36, and said that her government considers
agreements between States and indigenous peoples as national
agreements which should be settled in competent national
bodies.
267. The Government of France expressed its reservation with
regard to the wording of the second sentence in Article 37,
in which it is stated that rights recognized in the
provision "shall" be adopted and included in national
legislation. It was said that the use of the word "shall"
indicates that this is a convention and not a declaration.
268. The Government of Chile expressed its support for the
general thrust of Articles 36, 37, and 39. However, it was
said that the language in Article 39 should be reconsidered,
and that it is necessary to have a more precise concept for
the resolution of conflicts and disputes, which was said to
be a domestic issue.
269. The Government of Brazil expressed its support for
Article 36, and proposed that it should be stated in the
article that indigenous people shall have access to legal
mechanisms. As to Article 37, Brazil said that it does not
have any difficulties in accepting the principles of this
article. With regard to Article 39, it was said that the
expression "mutually acceptable" can create misunderstanding
and that it required some clarification.
270. The Government of the United States of America referred
to its statements during the first session (1995) of the
Working Group, which fully reflects the position of United
States of America. As to Article 36, United States of
America stated its support for the principle of having
States honour their treaties and agreements with indigenous
people. The representative said that in United States of
America treaty rights are legally enforceable obligations.
However, it was said that treaty rights are not enforceable
in international tribunals, due to the fact that they do not
give rise to rights under international law. With regard to
Article 37, United States of America expressed its support
for the spirit of the article, and said that it could be
adopted with certain changes. It was said that any rights
recognized in the declaration should be recognized in
domestic legislation, in particular where they are not
already provided for under national law. As to Article 39,
United States of America stated its support for a text
encouraging the use of such procedures which are mutually
acceptable to the parties. It was said that indigenous
people have the common right to equal access to independent
and impartial mechanisms of dispute settlement including
tribunals, as specified in Article 8 of the Universal
Declaration on Human Rights.
271. The representative of the International Organization of
Indigenous Resource Development expressed his support for
Articles 36, 37, and 39 and read out the present text of
those articles. He suggested that the present text should
remain unchanged.
272. The representative of the Grand Council of the Crees
emphasized the importance of Article 36, in which it is
stated that indigenous peoples have the right to the
recognition, observance and enforcement of treaties,
agreements and other constructive arrangements concluded
with States. He stated that States should respect and
implement the treaties they enter into with indigenous
peoples. It was said that the importance of article 36 is
that it requires States to respect their legal obligations,
and it provides for a means to settle treaty disputes at the
international level. The representative said that this is
important because at present States acts as the judge of its
own acts. Moreover, the sheer number of broken treaty
provisions suggests that the State is a very lenient judge
of its own acts. It was also said that the very existence of
dispute resolutions mechanisms at a higher level would help
to obtain respect for these instruments.
273. The representative of the Aboriginal and Torres Strait
Islander Commission presented a joint statement, on behalf
of indigenous organizations and indigenous representatives
of Australia, in which the representative expressed their
strong support for Articles 36, 37, and 39 and urged their
adoption as currently drafted. With regard to Article 36,
the representative emphasized the importance of treaties,
and called upon the Australian Government to immediately
commence good faith negotiations to establish processes for
an agreement of reconciliation. As to the second sentence in
Article 37, it was stated that the language is identical to
the language of Article 7 of the 1981 UN Declaration on the
Elimination of All Forms of Intolerance and Discrimination
based on Religion or Belief. With regard to Article 39, it
was referred to some international human rights instruments
which establish individual complaints procedures, such as
the First Optional Protocol to the ICCPR, Convention on the
Elimination of All Forms of Racial Discrimination, and
Convention Against Torture. Moreover, it was said that the
complaints procedure pursuant to the Racial Discrimination
Convention contemplates the submission of complaints not
only by individuals, but also by groups concerning
violations of their rights under the Convention.
274. The representative of the International Indian Treaty
Council expressed her strong support for Articles 36, 37,
and 39, and called for the adoption of the draft declaration
in its entirety, as minimum standards, without any changes,
amendments or deletions whatsoever. As to Article 36, she
said emphasized the importance of the recognition,
observance and enforcement of nation-to-nation treaties as
well as other types of agreements and constructive
arrangements which indigenous peoples have freely entered
into with States.
275. The representatives of the Indigenous World
Association, Comision Juridica de los Pueblos de Integracion
Tahuantinsuyana both expressed their strong support for
Articles 36, 37, and 38, and called for their adoption
without any changes, amendments or deletions, as minimum
standards.
ARTICLES 35, 38, 40, AND 41
276. The Government of France said that the wording of
Article 35 is very broad, it was also said that it should
spell out the concepts more clearly.
277. The Government of Colombia proposed the following
amendment in part one of Article 35: "Indigenous peoples
that live in territories divided by two or more states, or
that share the said territories, have the right to maintain
their cultural unity, maintain and develop contacts,
relations and cooperation, including activities for
spiritual, cultural, political, economic and social purposes
between its members or social groups, and with other peoples
across borders.
278. The Government of Chile expressed its general support
for Article 35. As to Article 38, Chile expressed the need
for more clarity, in particular with regard to the
objectives of the "assistance" mentioned in the article.
This is closely connected to the concept of self-
determination. With regard to Article 40 and 41, Chile
expressed its support for the general spirit of these
articles but considered that article 40 needed clarification
to define how intergovernmental organizations can
contribute. As for as article 41 was concerned, the
representative stressed the importance of establishing a
permanent forum in the United Nations.
279. The Government of Venezuela stated that, in article 35,
the terms "contacts" "relations and cooperation" needed
clarification since they could be interpreted as referring
to international relations which is a domain reserved for
the State. The representative said she had reservations
about article 38, in particular the right to financial and
technical assistance from States which might imply that
indigenous people could obtain international cooperation
without going through the competent State organs.
280. The Government of Australia expressed its general
support for Article 35, but said it would wish to clarify
the possible suggestion from the draft that there might be
an obligation on the part of States to provide the practical
means to "ensure" the exercise of the right, for example by
providing transport to facilitate the contacts referred to.
As to Article 40, Australia said that a formulation similar
to that in Article 9 of the Declaration of Minorities might
better achieve the purpose of ensuring the effective
involvement of organs and agencies of the United Nations
system, in the implementation of the draft declaration. With
regard to Article 41, Australia said it would reserve its
position.
281. The Government of the United States of America
expressed its support for Article 35, and that trans-
boundary contacts should be encouraged. As to Article 38
United States of America expressed reservations, however, it
was said that United States of America could accept a text
providing that resource transfers are encouraged by the
State and that States may as a matter of discretion agree to
the provisions of such assistance. With regard to Article
40, it was said that implementation of the declaration
should be largely the responsibility of States, although,
United Nations bodies may be called upon to help. As to
Article 41, United States of America said that they are of
the opinion that the text should be brought into line with
Article 9 of the Declaration on Minorities which provides
that "specialized agencies and other organizations of the
United Nations system shall contribute to the full
realization of the rights and principles set forth in the
present Declaration, within their respective fields."
282. The Government of Brazil expressed its support for
Article 35, and said that it agrees that indigenous people
have the right to maintain and develop contacts, relations
and cooperation with others across borders. Brazil proposed
the following wording of Article 35: "Indigenous people
divided by international borders have the right to maintain
and develop contacts, relations and cooperation, including
activities for spiritual, cultural, political, economic and
social purposes, with their fellows across borders, in
accordance with national border regulations." As to Article
38, Brazil proposed to add "in accordance with national
legislation" after the words "technical assistance." Brazil
expressed its full support for Article 40. As to Article 41,
Brazil said that it reserves its position concerning the
creation of a permanent body on indigenous issues.
283. The Government of Japan stated its support for the view
expressed by Brazil with regard to Articles 35 and 41. As to
Article 38, Japan said that further clarification is
required.
284. The representative of the International Organization of
Indigenous Resource Development expressed his support for
Articles 35, 38, 40 and 41 and read out the present text of
those articles. He suggested that the present text should
remain unchanged.
285. The representatives of the Ainu Association of Hokkaido
referred to an earlier statement given by the Government of
Japan concerning Article 38. He said that the concern of his
government that special provisions for the Ainu people would
jeopardize the principle of equality under the law in
relation to the rest of the population was not tenable. The
representative said that similar special measures are
already practiced in Japan in order to ensure that other
disadvantaged groups can enjoy to the fullest extent their
fundamental human rights and freedoms.
286. The Saami Council expressed its support for Articles 35
and 38, and said that no conceptual changes should be made
in the current text.
287. The representatives of Consejo de Todas Las Tierras,
Aboriginal and Torres Strait Islander Commission,
Association Nouvelle de la Culture et des Arts Populaires,
Indigenous World Associations, Organisation for Survival of
Illaikipiak Indigenous Maasai Group Initiative, Lummi Indian
Business Council, all called for an adoption of Articles 35,
38, 40 and 41 in their present form, without any changes,
amendments or deletions.
ARTICLES 3, 31 AND 34
288. The representative of the International Organization of
Indigenous Resource Development suggested specific wording
for articles 3, 31 and 34 by reading out the text of the
articles in the draft. He re-emphasized his support for the
repeated calls to adopt the draft declaration as adopted by
the Working Group on Indigenous Populations and the Sub-
Commission and that it be referred to the Commission on
Human Rights, Economic and Social Council and the General
Assembly for approval and passage. He noted that all the
articles, especially those on self-determination, treaties,
Indian government, consent, lands and resources, economic,
social and cultural development, education, medicine,
spiritual recognition, language and culture are very
important to them as recaptured rights and minimum
international standards and he requested the recognition of
these and all 45 articles in a spirit of cooperation and
partnership.
289. The representative of the Government of Colombia agreed
with the formulation of articles 3 and 31 and supported the
present wording, as these articles duly clarify the concept
of self-determination being applied in Colombia with respect
to internal autonomy of indigenous peoples, self-government
and self-determination. She stated that this is included in
national legislation and article 6 of the Colombian
constitution. She noted that self-determination is the
cornerstone of the draft declaration and that it does not
clash with State sovereignty.
290. The representative of the Saami Council stated that she
regarded articles 3, 31 and 34 as dealing with the principle
of the right to self-determination as a major principle and
concern of the draft declaration along with the principle of
the rights over land and related resources. She referred to
the statement by the representative of the Government of
Finland during the general debate, in which he referred to
Recommendation No. XXI (48) of the Committee on the
Elimination of Racial Discrimination, which emphasized the
distinction between internal and external aspects of self-
determination. She concurred with this statement because it
reflects the opinion of how self-determination should be
understood in current international law.
291. The representative of the Government of the Philippines
stated that her Government did not have much problem with
articles 3 and 31 but that it did have reservations about
the notion of collective rights of indigenous communities in
article 34 and in other articles which use that term. She
stated that her Government believes that self-determination
provides an important basis for the realization of the
civil, political, economic, social and cultural rights of
indigenous people and that it can only be exercised within a
defined area (ancestral domains) and that it must respect a
State's territorial integrity. She referred to provisions in
the Philippine's Constitution that recognize and protect the
rights of indigenous cultural communities to their ancestral
lands. She also stated that they agree with the major thrust
of the draft declaration but that it needs some improvement.
It could be shortened to add to its impact and the
Declaration on the Rights of Persons Belonging to National
or Ethnic, Religious or Linguistic Minorities could serve as
a model.
292. The representative of the Comision Juridica pare el
Autodesarrollo de los Pueblos Originarios Andinos stated
that every people has an inherent right to select its own
destiny and that the right to self-determination is vital
for the enjoyment of other rights of indigenous peoples.
293. The representative of the International Indian Treaty
Council recommended and called for the adoption of the draft
as adopted by the Sub-Commission in its entirety and without
changes, amendments or deletions as a minimum standards
protecting and promoting the rights of indigenous peoples.
She wanted to go on record as opposing any changes
whatsoever in the text or wording of articles 35, 38, 40 and
41 as well as articles 3 and 31 as they are integral and
essential parts of the entire document as it now stands. She
also stressed the importance of article 35 and the vital
importance to the entire meaning, significance and validity
of this document of article 3 in the current text.
294. The representative of the Government of Bolivia stated
that this group of articles essentially refers to the right
of self-determination and that it is particularly important
to emphasize the conceptual scope and practical effects. He
stated that the right to self-determination does not
necessarily presuppose the system of government and in
Bolivia's experience does not effect sovereignty. He
referred to the background of this article, specifically
article 8 of ILO Convention No. 169. He reaffirmed support
for the wording of article 3.
295. The representative of the Government of Venezuela
shared the thrust and intent of articles 3 and 31 but he
noted that there is an element of repetition in articles 3
and 31 and suggested that they be merged into one article
which would state, "Indigenous peoples have a right to self-
determination. By virtue of that right they have the right
to autonomy, or self-government in matters relating to their
internal and local affairs, including culture, religion,
education, information, media, health, housing, employment,
social welfare, economic activities, land and resources
management, environment and entry by non-members, as well as
ways and means for financing these autonomous functions".
This would achieve brevity and clarify the right of self-
determination.
296. The representative of Indigenous World Association
supported the language contained in articles 3, 31 and 34
and insisted on their adoption. He stated that article 3
forms the cornerstone of the declaration, that it must not
be diluted or altered from its present form and that
indigenous peoples have the collective right to exercise
autonomy and self-government over all political and socio-
economic matters regarding the well-being of their people
within their external boundaries.
297. The representative of the Government of Chile stated
that these articles present the greatest difficulties in the
declaration and that it is important to reach consensus on
the concepts therein. He stated that the meaning and
interpretation of the right of self-determination needed
clarifying, that he understood it to refer to internal self-
determination, in conformity with ILO Convention No. 169,
particularly article 7.
298. The representative of the Association of Shor People
supported the declaration without the introduction of any
changes, amendments or dilutions. He stated that article 3
is crucial to his people.
299. The representative of the Movimiento Indio "Tupaj
Katari" stated that the implicit recognition of the right to
self-determination constitutes the legal basis on which all
provisions of the draft declaration are based and that it is
an inherent right.
300. The representative of the Mejlis Crimean Tatar People
stated that the right of self-determination of indigenous
peoples is based on article 3 as well as articles 8, 9, 19,
20, 21, 33, 36, 37, 39, 40. and 41, which all represent
different aspects of the right to self-determination. He
emphasized his support for these articles and stated that he
supported the integrity of the Ukraine State and that
secession would be dangerous to all peoples.
301. The representative of the Commission for the Defence of
Human Rights for Central America stated that articles 3 and
31 are essential to all indigenous peoples of the world as
they are the basis of the whole draft declaration and that
it is only when they are recognized that the just and
democratic development for indigenous peoples can be
achieved. He requested the adoption of the overall document
without any amendments and called for the document to meet
the aspirations of indigenous peoples as they are interested
parties.
302. The representative of the Government of the United
States of America stated that article 3 presents the most
difficult question arising out of the declaration. He stated
that they practice self-determination domestically but that
they have difficulties with its use internationally in this
context, as under contemporary international law, the term
self-determination is open to varying interpretations,
depending on the specific context. He stressed that the
reference to the term of self-determination in an
international context goes beyond existing law, that its
meaning is not clear and that there is no international
consensus on its meaning. On article 31, he stated that
self-government of indigenous communities is fundamental but
that the text as drafted goes too far. On article 34, he
stated that indigenous people living in defined communities
should have the ability to adopt legislation defining the
responsibility of the individual to the community, provided
that it is consistent with internationally recognized human
rights standards.
303. The representative of the New South Wales Aboriginal
Land Council presented a joint statement, on behalf of some
of the indigenous organizations of Australia. He stated that
indigenous peoples, like all other peoples, possess the
right to self-determination and that to assert otherwise
would be untenable, discriminatory and racist. He stressed
that article 3 is one of the cornerstones of the declaration
and that it must be retained unaltered or the declaration
would be worse than meaningless. He also stated that article
31 appears to be a compromise as it only refers to some of
the options open to people under international law but that
they reluctantly accept it as part of the whole package of
the text as presently drafted.
304. The representative of the World Council of Indigenous
Peoples stated that the right of self-determination is the
framework in which all other human rights can be secured and
that governments must adopt this principle as it stands. He
pointed out that article 3 does not encourage secession but
that in connection with article 45 of the draft declaration,
it specifically discourages secession. Nonetheless, he
stated that this right is unconditional and that it should
not be limited, amended or exclusive of any other right.
305. The representative of the International Organization
for Indigenous Resource Development requested the adoption
of articles 3, 31 and 34 without amendment. He pointed out
that self-determination may be exercised in a manner
consistent with the Declaration on Friendly Relations and
that they do not agree in practice that the inevitable
consequence of that right is the break up of the current
structure of nation States. He stated that self-
determination is the unifying doctrine of the declaration
and that any significant reduction in this right would
defeat the declaration's purpose. He also urged the Working
Group to engage in a general debate about the fundamental
concepts of the declaration, such as self-determination and
collective rights, before commencing an article by article
redrafting.
306. The representative of the Government of France stated
that article 3 poses the question of whether the right to
self-determination is exercised within a nation or by
secession. He stated that the present wording of the text
may lead to misunderstandings, it is discriminatory and
against the equality of all before the law, and that some
forms of self-determination seem to create a State within a
State which is contrary to the French constitution. He
shared the concerns expressed by the Government of the
United States of America on Article 34 and stated that it
seems to deprive citizens of rights before the law.
307. The representative of the Government of Fiji
unequivocally supported article 3, and stated that it is
pivotal to the entire declaration. He also stated that it
should be read alongside article 45.
308. The representative of the Central Land Council stated
that article 3 is fundamental to the success of the draft
declaration as a whole, that any diminution would result in
a rejection of the declaration as a whole by her people and
that it is a pre-condition for the exercise of all rights in
the declaration. She referred to common article 1 of the
International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural
Rights and stated that a failure to recognize this right for
indigenous peoples would violate the fundamental principles
of equality and non-discrimination articulated in the United
Nations Charter and elsewhere. She also stated that article
3 must not be altered.
309. The representative of the Government of Canada stated
that the question of self-determination is central to the
declaration, that the right of self-determination is
fundamental to the international community and that its
inclusion in the UN Charter and in the International
Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights shows that
it is important to the protection of human rights of all
peoples. He stated that Canada is legally and morally
committed to the observance and protection of this right. He
recognized that this right applies equally to all
collectivities, indigenous and non-indigenous, which qualify
as peoples under international law. He referred to a survey
of State practice and academic literature as well as the
Declaration on Friendly Relations and stated that the
principle is aimed towards establishing a framework for the
full enjoyment of all human rights while respecting the
political and constitutional framework of States. The goal
of the Working Group is to achieve a common understanding of
this right and reflect it in the wording of article 3. He
stated that Canada accepts a right of self-determination for
indigenous peoples which respects the political,
constitutional and territorial integrity of democratic
States and that it supported provisions in the draft
declaration on the implementation of this right. With
respect to article 31, he stated that Canada interprets a
right of self-determination in internal and local affairs as
a right of indigenous peoples to govern themselves and
accepts the proposed range of matters over which self-
government should extend. He pointed out that Canada is
prepared to recognize a role for the State, together with
indigenous peoples, in financing the implementation of self-
government. He also called for further discussion to clarify
the meaning of the terms "self-government" and "autonomy".
He also noted the need to clarify the primacy of
international human rights standards in relation to a number
of provisions in the draft declaration, including article
34.
310. The representative of the International Working Group
for Indigenous Affairs stated that human rights would have
no meaning if the right to self-determination was diluted
and that discussing internal and external aspects so as to
reduce or strengthen the article is premature and counter-
productive. He also stated that these articles should be
retained in their existing form.
311. The representative of the Government of Brazil stated
that he shared many of the concerns of the Governments of
the United States of America and France. He stated that the
constitution of Brazil guarantees self-determination but
that they have problems with the reference to the right to
self-determination in the context of the draft declaration
and that they could not agree to the present drafting of
article 3. He expressed the same concerns for article 31 and
that they would have to modify and amend the present
language regarding autonomy and self-government and that it
should not include a list because this would depend on the
organization of the State. On article 34, he stated that
they recognize the existence of collective rights but that
they shared the concerns expressed by the Governments of
France and Canada and proposed to introduce a safeguard to
protect individual rights.
312. The representative of the Grand Council of the Crees
pointed out that the United Nations had already recognized
that self-determination is a right belonging to "all
peoples" and thus, it is also a right which belongs to the
world's indigenous peoples. He emphasized that under the
principles of universality and indivisibility the right to
self-determination should not be limited but he also noted
that a balance must be struck between respect for the right
of self-determination and the need to protect the integrity
and stability of States, as enunciated in the Declaration on
Friendly Relations. He also welcomed the statement made by
the Government of Canada.
313. The representative of the Government of Denmark
expressed her support for the wording of articles 3, 31 and
34 in their present draft. She also urged the Centre for
Human Rights to finish the work of producing the Manual of
Indigenous Self-Government and to ensure its distribution to
interested governments and indigenous peoples as she
considered this would assist with the wider understanding of
the issue.
314. The representative of the International Organization of
Indian Resource Development acknowledged Canada's
intervention and thanked it for its significant advancement,
particularly in its acceptance of the right of self-
determination of indigenous peoples and its use of the term
"indigenous peoples".
315. The representative of the Government of Japan
questioned whether they accepted the right to self-
determination and joined in the concerns of the Governments
of Canada, France and Brazil on article 34.
316. The representative of the Chittagong Hill Tracts Peace
Campaign stated that the right of self-determination is the
heart of the draft declaration and that article 3 is
consistent with common article 1 of the International
Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights. She urged
the adoption of article 3 without any change, deletion or
amendment.
317. The representative of the Government of Argentina
stated that the present wording of the right to self-
determination in article 3 was not acceptable. He referred
to the Declaration on the Granting of Independence of
Colonial Countries and Peoples and stated that he did not
support self-determination in the external sense and
proposed adding a sentence to the effect that the
declaration cannot be interpreted as breaking up the unity
of the State. He also stated that he supported the principle
and philosophy of article 34 but that he agreed with the
statements of the Governments of the United States of
America and Brazil.
318. The representative of the Indian Law Resource Center
informed the Working Group that she was utterly and totally
flabbergasted as summed up in the following term: "WOW!".
She acknowledged the positive contributions by the
Government of Canada and other Governments but stated her
concern that other States do not have a tentative agreement
on fundamental concepts of the draft declaration such as the
right to self-determination and the need to balance
individual and collective rights.
319. The Aboriginal and Torres Strait Islander Social
Justice Commissioner emphasized his earlier statement that
the unqualified recognition of the right to self-
determination is absolutely fundamental to the integrity of
the declaration. He stated that the right to self-
determination is the pillar upon which all other provisions
of the draft declaration rest and that the language of
article 3 must remain unaltered. He stressed that common
article 1 of the International Covenant of Civil and
Political Rights and the International Covenant of Economic,
Social and Cultural Rights is a right of all peoples and
that to deny this right to indigenous peoples would be
discriminatory and would demonstrate that the Member States
of the United Nations view our rights as inferior to those
of other peoples. He acknowledged the statement by the
Government of Canada. He proposed that there be a joint
preparatory meeting to further discuss the methods of work
of this Inter-Sessional Working Group and to plan the
organization of work of the next session.
320. The representative of the Government of Colombia
referred to the relationship between article 34 and
provisions of their Constitution and the interpretation of
these by their constitutional court.
321. The representative of the Cordillera Peoples Alliance
stated that articles 3, 31, 34, is the starting point of the
declaration. She referred to the preamble of the United
Nations Charter and article 1 of the International Covenant
of Civil and Political Rights and stated that the
realization of lofty goals of the International Decade of
the World's Indigenous People can only be attained if these
articles are adopted without any diminution.
322. Two representatives of the International Indian Treaty
Council each stated that self-determination is a right under
international law and called for the speedy adoption of the
draft declaration.
323. The representatives of the Association Nouvelle de la
Culture et les Arts Populaires, the Ainu Association of
Hokkaido and the Movimiento Indio Tupaj Katari expressed in
written statements their support for these articles.
ITEM 5 - OTHER MATTERS
324. The Government of Bangladesh drew attention to the
question concerning the participation of international
inter-governmental organizations and agencies in the
substantive work of the Working Group. The representative
referred to an intervention made by the International Labour
Office during the first week of the session, and said that
the statement went beyond the competence of the ILO
Secretariat. The representative informed the Working Group
that the response provided by the ILO Secretariat, on the
request of Bangladesh, has not put their concerns to rest.
Moreover, he said that the Secretariat is not the repository
of the substance of the ILO Conventions, and has no
authority to define or interpret issues of any of the
Conventions, which is the prerogative of the parties to the
Convention. However, The representative of Bangladesh said
that it would not go into the comments provided by the ILO
on the draft declaration.
325. The representative of Indian Law Resource Center
referred to the statement made by the Government of
Bangladesh. She said that the representative of Bangladesh
addressed all matters but other matters, and that this shows
that it is required with more space for general debate.
326. The representative of the International Organization of
Indigenous Resource Development referred to unfortunate
events in the course of this session, and expressed hope
that those events do not have any impact on the
establishment of a permanent forum for indigenous peoples
within the United Nations.
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