United Nations Permanent Forum on Indigenous Issues (Day 3)

United Nations Permanent Forum on Indigenous Issues
Fifth Session

Day 3
Wednesday, May 18, 2006



|| Outside the United Nations New York ||

Wednesday's morning session continued with interventions/statements made by Nations and indigenous organizations. Of particular note was the joint statement made be New Zealand on behalf of New Zealand, Australia, and the United States of America in the morning session. The statement clearly articulated, for the first time in UN fora, the United States’ concerns with the Draft Declaration on the Rights of Indigenous Peoples.

It is important to provide some background information regarding the Draft Declaration before discussing the joint statement. Mandated by the UN Economic and Social Council (ECOSOC), the Declaration has been in development for 25 years with participation from Indigenous Peoples around the globe. When it is adopted, it will be a clear indication by the international community of their commitment to the protection of the individual and collective rights of indigenous peoples. United Nations declarations, while not legally binding on States, are "aspirational statements," that provide a moral framework for States in their interactions with indigenous peoples.

Over the years, there has been considerable work done by indigenous organizations and various UN committees on this document. One Committee of note is the Working Group on the Draft Declaration on the Rights of Indigenous Peoples that has been meeting annually to work on the development and adoption of the draft. Their most recent meeting occurred in January of 2006. In his report of this meeting, the Chairperson-Rapporteur introduced a document, E/CN.4/2005/WG.15/2, that contained his proposal on all articles that had been discussed during previous sessions. This document is typically referred to as the "Chairman’s Text". The goal of this document, according to the Chairperson, was to provide the working group with text that was "closest" to a consensus between Indigenous Peoples and the States, as well as between the States themselves.

Several organizations, including the American Indian Law Alliance and the International Indian Treaty Council, are doing extensive legal analysis of the Chairman’s text with a particular focus on determining whether changes in the Chairman’s document are "weaker" or "stronger" than those currently included in the original Draft Declaration as developed by the Working Group on Indigenous Populations and accepted by Consensus by the Sub-Commission on the Promotion and Protection of Human Rights. While analysis is still being conducted, neither organization previously mentioned has taken a position on the Chairman's text. As Andrea Carmen, IITC noted, extensive consultation has to occur with Treaty Council members before the organization could take a stand on the Text.

|| Honor ||

How does this relate to the adoption of the Draft Declaration? There are two critical issues that indigenous peoples are dealing with as it relates to the Draft Declaration. The first deals with the Draft Declaration as it stands and the Chairman's Text as previously mentioned. The second issue is the restructuring of the United Nations, most notably the UN Commission on Human Rights, which I will address next.

On March 15th, 2006, the UN General Assembly created the Human Rights Council which replaces the UN Commission on Human Rights (CHR). The UNCHR has been an important mechanism for Indigenous Peoples to address human rights violations and create global standards to defend and uphold these rights. It is not clear to Indigenous Peoples, their organizations, and Allies, how the new Human Rights Council will be include Indigenous Peoples in the new structure. The new Human Rights Council is scheduled to begin its first session on June 19th of this year.

This is of particular concern as it pertains to the Draft Declaration, specifically the adoption of the Draft Declaration on the Rights of Indigenous Peoples. Under the old structure, the Draft would have been addressed under CHR agenda item 15, "Indigenous Issues." As Andrea Carmen, IITC stated, "the re-structuring of a UN system should not deny the IITC and other Indigenous NGOs access to the process, nor should the rights of Indigenous Peoples put on hold by this process." We have yet to see how this will impact adoption and future work on the Draft Declaration itself.

We will now return our attention to the joint statement by New Zealand, Australia, and the United States.

In the joint statement, the representative from New Zealand made several statements that raised considerable concern by Indigenous People attending. He stated that the provisions for articulating self-determination for indigenous peoples within the Draft are "inconsistent with international human rights law." He pointed out that they could be "misrepresented as conferring a unilateral right of self-determination (Article 3) and possible secession upon a specific subset of the national populace, thus threatening the political unity, territorial integrity and indeed the security of existing UN Member States." He argued that Article 3 in the text...,"has the potential to create instability." He further argued that the Text "appears to confer upon a minority, a power of veto over the law of a democratic legislature (Article 20)" and that the "provisions on lands and resources are particularly unworkable and unacceptable." He argued further that the Chariman's Text does not enjoy consensus and is thus "fundamentally flawed." As mentioned previously, this was the first time that the concerns of these states, most notably the United States, were articulated this clearly.

|| From the Desk of... ||

Several Indigenous delegates, including Wilton Littlechild, Indigenous Independent Expert Member from North America on the Permanent Forum on Indigenous Issues, expressed great concern regarding this statement. He started by saying, "as the elder’s would say back home, thems fighting words." He referred to the rights in the Draft Declaration as "inherent rights" and that there are many legal experts that would disagree with the position put forth in the joint statement. During his statement, he also acknowledged that Canada has been appointed to the new UN Human Rights Council.

Other individuals, including Carrie Dann from the Western Shoshone Defense Project made statements during the morning session. The afternoon session was closed with many delegates attending various side events.

|| Carrie Dann ||

Western Shoshone Defense Project

Special thank you to Alberto Gonzales and Manny Pino for their contributions and feedback to the write-up of Wednesday’s proceedings.