HR/CN/602
23 August 1994
SPECIAL RAPPORTEUR PRESENTS DRAFT DECLARATION ON RIGHTS
OF INDIGENOUS PEOPLES
Asks Subcommission to Avoid Further Delays
And Additional Destruction of Human Life and Ecosystems
GENEVA, 22 August (UN Information Service) -- A draft international
declaration proclaiming the rights and unique values of indigenous peoples was
presented this morning to the Subcommission on Prevention of Discrimination
and Protection of Minorities.
Erica-Irene Daes, Chairperson/Rapporteur of the Working Group on
Indigenous Populations of the Subcommission, said the draft represented years
of work and extensive meetings with hundreds of indigenous peoples, as well as
representatives of observer Governments, specialized agencies of the United
Nations system, and non-governmental organizations. Calling for its adoption,
she said, every new proposal for delaying the draft at any level of the
United Nations must be weighed soberly against the destruction of human life
and ecosystems that another year or more of delay would bring. The draft
declaration's claims on self-determination and territorial rights, which had
drawn some opposition from Governments, simply were rights of all peoples,
which could not be denied of the indigenous peoples.
Subcommission experts and representatives of several non-governmental
organizations called for approval of the draft. Noting that the proposal had
been under preparation for over a decade, Fisseha Yimer, Subcommission member
from Ethiopia, said it was time to complete consideration of the document and
to submit it to the Commission on Human Rights immediately. Asbjorn Eide,
expert from Norway, said reference in the draft declaration to
self-determination would undoubtedly draw comment, but the term meant not
having their own States so much as having autonomy -- functional or
territorial, or a combination of the two -- within existing States. A
representative of the Saami Council, a non-governmental organization, said
further delay in approval would be "a disservice" to indigenous peoples and
added that such peoples should have a permanent forum within the United
Nations to represent their interests.
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23 August 1994
Addressing the morning meeting of the Subcommission were experts from
Nigeria, Greece, Ethiopia, Japan, Chile, Morocco, Ukraine, Norway, Colombia,
United Kingdom, France and the Russian Federation. Statements were also made
by the following non-governmental organization: Andean Commission of Jurists,
Anti-Slavery International, Saami Council, Indian Council of South America,
Indian Law Resource Center, Four Directions Council, International Working
Group on Indigenous Affairs, Society for Endangered Peoples, International
Movement for Fraternal Union Among Races and Peoples, and the International
Indian Treaty Council.
Discrimination against Indigenous Peoples
In considering the question of discrimination against indigenous peoples,
the Subcommission has before it the report of the Working Group on Indigenous
Populations on its twelfth session, which contains the draft universal
declaration on the rights of indigenous peoples.
The Chairperson-Rapporteur of the Working Group, Erica-Irene Daes, has
prepared a note containing a draft programme of activities for the
International Decade of the World's Indigenous People, which begins on
10 December. She has also prepared a preliminary report on protection of the
heritage of indigenous peoples. It contains a set of principles and
guidelines, which she recommends should be submitted to indigenous peoples'
organizations, Governments, specialized agencies and non-governmental
organizations concerned for their comments. She states that the eventual
adoption of such principles and guidelines would constitute a first formal
step towards committing the United Nations to the protection of indigenous
peoples' heritage.
The Subcommission will also consider a report from the Centre on
Transnational Corporations regarding transnational investments and operations
on the lands of indigenous peoples. The report contains five case-studies
from Africa and Asia focusing on such issues as conflicting forms of land
tenure; co-optation of community leaders by transnational corporations; the
impact of national development plans and structural adjustment programmes
where those corporations are the major actors and indigenous peoples the
uncompensated victims; and the transition of the former socialist countries to
market economies where officials must now juggle both development and
indigenous participation.
Statements
ERICA-IRENE DAES, Chairperson/Rapporteur of the Working Group on
Indigenous Populations, introducing the draft declaration on the rights of
indigenous peoples, said hundreds of indigenous peoples, a great number of
representatives of the observer Governments, specialized agencies and
non-governmental organizations, scholars and lawyers participated actively in
the Working Group. As a result, the present text reflected an extraordinary,
liberal, transparent, and democratic procedure that encouraged broad and
unified indigenous input.
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The draft declaration was a long and complicated document. Even so, it
probably could not fully reflect the concerns of every indigenous people or
Government. The Working Group sought to extract the essential concerns of
indigenous peoples as a whole, understanding that indigenous peoples, like all
nations and peoples, varied greatly even among themselves. The preamble
contained a number of important general principles, including specific
reference to self-determination, not because it was a right of indigenousness,
but as a right of all people which indigenous peoples could not be denied.
Although equal in law to all other peoples, indigenous peoples tended to
prefer partnerships over separate statehood or complete integration, she
continued. To protect the integrity of these basic arrangements, indigenous
peoples must continue to enjoy a legal status of their own, and have access to
international fora. A corollary of legal personality was the principle of
territorial security, meaning that indigenous peoples had defined historical
territories -- even within the borders of existing States -- and the right to
keep those territories physically intact, environmentally sound and
economically sustainable in their own ways. Defending the rights of
indigenous peoples continued to be a matter of international concern and a
specific part of the mandates of international bodies and legal mechanisms, to
which indigenous peoples themselves should have direct access. Every new
proposal for delaying the draft declaration at any level of the United Nations
must be weighed soberly against the destruction of human life and ecosystems
that another year or more of delay would bring.
JUDITH SEFI ATTAH, Chairperson and expert from Nigeria, said it was the
responsibility of the Subcommission to continue to explain the provisions of
the declaration to all those in doubt.
FESSEHA YIMER, expert from Ethiopia, said it was time to pass the draft
declaration on indigenous peoples to the higher body without modification and
without further delay. The draft was one of the most significant documents
ever produced by the Subcommission or even by the United Nations over the last
years. Its elaboration and examination had taken over a decade. Technical
reviews of the draft had also been made by the Working Group during its
meticulous examination of the draft. Since the draft declaration had to go
through the higher bodies, necessary modifications could be made, but the
Subcommission had to pass it immedaitely to the Commission for Human Rights
for consideration during its next session.
RIBOT HATANO, expert from Japan, said the Subcommission should give the
opportunity to look at the draft to experts who were not members of the
Working Group, to new Subcommission members and to observers, none of whom
were expected to have had a look at it in advance. The Subcommission must
respond in good faith to the request from its parent body to complete its
consideration of the draft, if possible at the current session. He expressed
the hope that everyone would engage in an amicable and effective exchange of
views on the draft declaration and that the Subcommission would be able to
agree to submit it to the Commission as soon as possible, possibly by the end
of the session.
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JOSE BENGOA, expert from Chile, said the draft declaration was
inseparable from the history of South America, which had many pre-Colombian
peoples. Indigenous populations had been reduced to rural remnants, outside
the mainstream. It was not acceptable to try -- and many had -- to turn such
people into ordinary citizens. The draft declaration's recognition of
collective rights of indigenous peoples was appropriate. The clause about
self-determination should not lead to the breakdown of countries; that was not
what indigenous peoples meant by self-determination. They meant that they had
allegiances both to their own peoples and to the countries in which they
resided. They meant they had the right to defend their land, resources,
cultures and languages. It was essential to adopt the draft declaration
quickly.
HALIMA EMBAREK WARZAZI, expert from Morocco, congratulated the
Chairperson and the experts who worked for many years to prepare the draft.
The Chairperson did not spare her efforts and time in recognizing the
aspirations and interests of the indigenous peoples. Indigenous peoples had
suffered a lot, particularly by the passage of the conquistadors who had been
exploring resources and by their blind sentiments of superiority in which they
killed and destroyed, often in the name of God. It was now time to recognize
their existence, their sufferings and to render them justice. The adoption of
the draft declaration was not only a sign of solidarity with the indigenous
peoples, but a just homage to the Working Group which endeavoured to prepare
the draft declaration during the last decade.
VOLODYMYR BOUTKEVITCH, expert from Ukraine, said the draft declaration
was a remarkable and unique document. It opened new directions for activities
and structures. The draft declaration set out in an optimal fashion the
measures that could be adopted today. The Subcommission certainly needed to
discuss it, and thoroughly. But it should not drag the discussion out. That
would not increase the authority of the Subcommission, nor would it help
indigenous peoples.
ASBJORN EIDE, expert from Norway, said there was wide awareness in the
United Nations system about work carried out on behalf of indigenous peoples
by the Subcommission. The World Bank had significantly changed its practices
as a result of that work, and a number of Governments had significantly
changed their legal protections of indigenous peoples. The draft declaration
stressed the equality of indigenous peoples, their right to participation, and
their right to their own styles of development. The concept of
self-determination would undoubtedly draw comment, but it was important to
recognize that self-determination could mean different things. In the current
case, "self-determination" meant not having one's own State so much as having
autonomy -- functional or territorial, or a combination of the two -- within
an existing State. In that respect, the draft declaration broke new ground.
Such a concept required constructive cooperation between the authorities of
States and indigenous peoples. Indigenous peoples had a very special claim
for a degree of territorial autonomy. It was necessary for their survival.
The Subcommission's work was done. It was time to approve the draft and
submit it to the Commission on Human Rights for consideration.
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CLEMENCIA FORERO UCROS, expert from Colombia, congratulating the
Chairperson and the Working Group for their work, said it was the right time
to recognize and protect the multicultural and spiritual heritage of
indigenous peoples together with the present development. The Colombian
Constitution had enshrined in its provisions respect for the indigenous
communal land and rights, including their resources. The provisions had not a
formal but real presence in the socio-economic aspect of the indigenous
peoples. The customary laws of the indigenous peoples were recognized. The
present draft declaration also reflected the commitments of States in that
regard. The indigenous peoples should begin participating right from the
beginning of the International Decade for Indigenous Peoples. The draft
declaration should be adopted by consensus.
CARLOS RODRIGUEZ-MEJIA, of the Andean Commission of Jurists, said it was
of great significance that the General Assembly had proclaimed the
International Decade of the World's Indigenous People. He valued the efforts
undertaken on the draft declaration and welcomed the statement of the European
Parliament last February urging members of the European Union to accede to the
International Labour Organisation (ILO) Convention on indigenous peoples. He
welcomed the common effort by indigenous groups and Governments in Latin
America and the Caribbean to develop consensus proposals concerning the
planning of the Decade. However, the continuing problems of indigenous
peoples illustrated the need to develop mechanisms to give effect to the
progress made in standard-setting. Colombia and Peru had constitutional
provisions on indigenous peoples, but those had not been implemented. In
Ecuador, the Government had passed a law on agricultural development that
affected the land rights of the indigenous population and had generated
massive protests. The 1993 Constitution of Peru did not recognize the
inalienable nature of indigenous lands. Also in Peru, as well as in Bolivia,
the cultivation of coca leaf was being criminalized, thus denying indigenous
peoples of a part of their cultural spirit and an instrument of social
cohesion and economic exchange.
DOUGLAS SANDERS, of Anti-Slavery International, said the need for the
provisions of the draft declaration was clear when one looked at the situation
of indigenous peoples in the Chittagong Hill Tracts of Bangladesh.
Bangladesh, like many other Asian States, was highly centralized, a fact that
always caused problems for minorities and indigenous peoples. Land continued
to be a basic unresolved issue. There were problems including security and
refugees. If these issues were not adequately resolved, insurgency and
militarization would simply be re-established, and a peaceful resolution made
more difficult.
OLE GAUP, of the Saami Council, said adoption of a universal instrument
for the promotion and protection of human rights and fundamental freedoms of
indigenous peoples was a matter of urgency. There was a clear casualty
between the absence of such a universal instrument and the problems faced by
indigenous peoples. The present draft reflected a democratic procedure that
encouraged broad indigenous contributions. The time was ripe to usher it
forward, as further discussions would be a disservice for all indigenous
peoples. The lack of such international tools of that kind and the continuous
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violations of human rights and other fundamental freedoms faced by indigenous
peoples required that the draft declaration now proceeded further within the
United Nations system towards a final adoption. The Council had endorsed the
idea of a permanent forum at the United Nations to deal with indigenous
affairs. There was also a need for the indigenous peoples to have a
particular office to relate to at the United Nations, as well as for a supreme
responsible person at the United Nations to monitor and manage questions
pertaining to indigenous peoples. He therefore fully supported the
recommendation that at a high commissioner on indigenous rights be appointed.
TOMAS CONDORI, of the Indian Council of South America, thanked the
Chairperson and the Working Group for their work. Indigenous groups had great
hope for the Decade, that it would be the first step towards a convention on
the rights of indigenous peoples. There was a new alliance coming into being
which encouraged the active participation of indigenous peoples in planning
for development. The fight by indigenous peoples, and the support provided by
the United Nations, had borne fruit. That might set an example for the
countries of the world. Already, the Bolivian Constitution recognized the
country as a multiethnic and multicultural society. It also recognized the
rights to ancestral lands of indigenous groups and provided for the creation
of an ombudsman to monitor respect for the human rights of indigenous peoples.
CLAIRE PALLEY, expert from the United Kingdom, noted that the draft
declaration was a significant piece of work which deserved great
consideration. The text was already a negotiating base for States and
indigenous peoples. Since there was a rotation of experts every two years,
the elaboration of such a text had to take place in a small steering body or a
commission of working groups. The participation of non-governmental
organizations and particularly those of indigenous peoples was essential. The
Subcommission should endorse the draft declaration and send it the Commission.
ROBERT COULTER, of the Indian Law Resource Center, speaking on behalf of
the National Congress of American Indians, noted that the draft declaration
enjoyed very wide support and approval among indigenous groups and
organizations around the world. It deserved the approval of the
Subcommission, and it also deserved the attention and consideration of United
Nations Member States. The Center was deeply aware of the need for standards
on the rights of indigenous peoples. The terrible suffering of the Yanomami
Indians in Brazil was the result of Government action or its failure to act.
The wrongful taking of Indian lands by the Government of the United States and
other countries was continuing even today. Those and many other situations
reminded the Center how urgent it was that those human rights standards be
considered at the highest levels as soon as possible. Further work on the
draft declaration would be most productive if carried out at the Commission on
Human Rights; it seemed impractical to begin making drafting changes on the
draft declaration in the Subcommission. The proposal for a permanent forum
for indigenous peoples in the United Nations system was an idea that deserved
further consideration. The forum could not be, in the foreseeable future, a
substitute for the Working Group on Indigenous Populations.
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GRACE SMITH, of the Four Directions Council, speaking on behalf of the
Dine'h Nation of Arizona, United States, said that to remove the peoples from
the land was to remove life from them. In 1974, by Public Law 93-531, the
United States Congress passed a relocation law which would relocate 15,000
people from the land. In 20 years, the Government had only been able to
relocate 4,000 people, of whom 1,100 were refugees in their own land. In
1992, the Ninth Circuit Court ordered a mediation process to take place so
that the issue could be peacefully settled by both the Navajo and Hopi Tribal
Governments. The mediation process decided upon a 75 year lease programme
where the Dine'h had to pay $250 a month rent for a three acre parcel of land,
and keep only 25 sheep with a 10-acre cornfield. The Justice Department was
attempting to force the elders to sign the agreements in principle. There was
escalating harassment and 98 per cent of the livestock had been impounded.
The mediation team no longer wanted to continue the negotiations. The
mediation process was fundamentally flawed, because there was no independent
verification of the possible solution.
LOUIS JOINET, expert from France, said the drafting of the preambular
section seemed more decisive and strong than the drafting of the articles of
the proposed declaration. Since in seeking the best one often marred what was
good, the Subcommission should accept the draft.
SHARON H. VENNE, of the International Working Group on Indigenous
Affairs, said it was extremely difficult to discuss the report of the Working
Group when it was not available. She stressed the importance of indigenous
participation in the development of activities for the Decade at all levels of
the United Nations system and highlighted the contribution of indigenous
groups to the Working Group. The legitimacy of the final text of the draft
declaration depended on full participation of indigenous peoples. The
Subcommission should make full indigenous participation part of its proposals
to the Commission.
NATANI MINTON, of the Society for Endangered Peoples, said that the draft
declaration was a practical text in application of the international law
regarding the rights of indigenous peoples. Those peoples had gone through
the tragedies of losing their lands and had been subjugated to exploitation by
colonialists. The United States Federal and state Governments had
relinquished the spiritual and cultural rights of the indigenous peoples. In
the draft declaration the article on self-determination or autonomy should
provide an interpretation for the option of independence.
C.M. EYA NCHAMA, of the International Movement for Fraternal Union Among
Races and Peoples, said the question of who should benefit from the rights
recognized in the draft still needed to be resolved. The Working Group had
created confusion regarding which African groups should be designated as
indigenous. Its last session had seen the participation of a group of
Afrikaners. How could they call themselves an indigenous people, since they
had only been in Africa since 1652? That was not to mention that they had
oppressed the true indigenous peoples of that land, such as the Zulu, Xhosa
and San. As for the draft declaration, he commended the effort made by the
United Nations to solve a problem that was five centuries old; once the issue
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was settled thanks to the elaboration of appropriate international standards,
a great step forward would be taken. However, that presupposed that
indigenous peoples would be adequately represented at all levels of the United
Nations structure.
ROBERT CRUZ, of the International Indian Treaty Council, endorsed the
establishment of a permanent forum that recognized the participation of
indigenous peoples in decision-making. Articles in the draft declaration
should provide remedy from the grave violation of human rights of indigenous
peoples. Other articles should also seek to prevent violations and protect
indigenous peoples. The inclusion of provisions which sought to guarantee the
physical, cultural and spiritual survival of indigenous peoples was
essential. The Council believed in the importance of the document that should
receive the highest endorsement of indigenous peoples, experts, observers and
non-governmental organizations.
STANISLAV CHERNICHENKO, expert from the Russian Federation, said the time
had come to submit the document to a higher body by adopting it, despite the
fact that it had certain shortcomings. One could not have a perfect text.
The second half of article 6 stated that indigenous peoples had individual
rights to physical and psychological integrity and personal freedom and
security. Those rights were recognized for everybody. If they were put in
the declaration, non-indigenous people might ask whether they were also
entitled to them. Article 7 of the draft stated that indigenous peoples had a
collective and individual right to protection from cultural genocide. The
term cultural genocide should be replaced by "destruction of culture". That
was not to say that destruction of the cultural heritage of indigenous peoples
was not serious, but it was a different phenomena. Article 11 said States
should not recruit into armed forces persons from indigenous groups against
their will. But in States with compulsory military service, all citizens were
called to serve. One should stress moral and religious convictions as grounds
for objection to military service, not cultural and ethnic groups.
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