CONSEJO INTERNACIONAL DE TRATADOS INDIOS

COMMISSION ON HUMAN RIGHTS

Fifty-eighth session

Item 15 of the Provisional Agenda

INDIGENOUS ISSUES

Report of the working group established in accordance with

Commission on Human Rights resolution 1995/32

Chairperson-Rapporteur:  Mr. Luis-Enrique Chávez (Peru)

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 (now the Sub-Commission on the Promotion and Protection of Human Rights) 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 6 formal meetings and 15 informal plenary meetings during the period 28 January to 8 February.  A total of 339 people attended the meetings of the working group, including representatives of 53 Governments, representatives of 3 UN organisations and 78 indigenous and non‑governmental organisations.

3.         The present report contains a record of the general debate. The debate which took place in the informal plenary meetings is reflected in the summaries of the Chairperson-Rapporteur. 

4.                  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” by all Governments.  In this report both terms are used without prejudice to the positions of particular delegations, where divergence of approach remains.

5.                  It is noted by indigenous representatives that all indigenous representatives

and many Governments could accept the expression “indigenous peoples” used in the current text of the draft declaration.

Opening of the session

6.         The Working Group was opened by the representative of the OHCHR, Ms. Stefanie Grant.  She welcomed the participants and made special mention of the Voluntary Fund for Indigenous Populations and the vital role it plays in ensuring broad participation of indigenous peoples at United Nations meetings including the working group.  The representative thanked governments who had donated to the Fund and also encouraged donor governments and others to continue to make donations to the Fund.  She also noted the recent resolution of the General Assembly that amends the mandate of the Voluntary Fund so that it could assist indigenous peoples wishing to participate in sessions of the Permanent Forum on Indigenous Issues.  Ms. Grant asked for assistance from donors, to ensure that the first session of the Permanent Forum that takes place in New York from 13 May to 24 May 2002, is a success and that a broad and diverse range of indigenous peoples can attend and participate. 

7.         At its first meeting, the Working Group elected by acclamation Mr. Luis-Enrique Chávez (Peru) as its Chairperson-Rapporteur.

Documentation

8.         The Working Group had before it the following documents:

Provisional agenda (E/CN.4/2002/WG.15/1);

Draft report of the working group established in accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995 (E/CN.4/2000/WG.15/CRP. 1-..);

Provisional list of participants (E/CN.4/2002/WG.15/INF.1).

Conference Room Papers 1-4 (E/CN.4/2002/WG.15/CRP.1-CRP.4)

9.         The following background documents were made available to the working group:

Draft United Nations declaration on the rights of indigenous peoples (E/CN.4/Sub.2/1994/2/Add.1);

Report of the working group established in accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995 on its fifth (sixth?) session (E/CN.4/2001/85).

Report of the Working Group on Indigenous Populations on its nineteenth session (E/CN.4/Sub.2/2001/17)

Participation

10.       The following States members of the Commission on Human Rights were represented: Argentina, Austria, Brazil, Canada, Chile, China, Cuba, Ecuador, France, Germany, Guatemala, India, Indonesia, Japan, Malaysia, Mexico, Peru, Poland, Russian Federation, South Africa, Spain, Sweden, Thailand, United Kingdom, Zambia, Uruguay, Venezuela, and Vietnam.

11.       The following States Members of the United Nations were represented as observers: Australia, Belarus, Bolivia, Colombia, Denmark, Egypt, Estonia, Finland, Jordan, Latvia, Morocco, Nepal, New Zealand, Norway, Paraguay, Philippines, Romania, Tunisia, Ukraine, United States of America.

12.       The following non-member States of the United Nations were represented as observers: Holy See, Switzerland.

13.       The following specialised agencies and intergovernmental organisations were represented as observers: International Labour Office, the World Bank and the World Intellectual Property Organisation.

14.       The following indigenous and non-governmental organisations in consultative status with the Economic and Social Council were represented as observers:

Indigenous organizations:

Aboriginal and Torres Strait Islander Commission, American Indian Law Alliance, Asociacion Nabguana, Indian Council of South America, Grand Council of the Crees, Indian Law Resource Centre, Indian Movement “Tupaj Amaru”, Indigenous World Association, International Indian Treaty Council, International Organisation for Indigenous Resource Development, International Work Group for Indigenous Affairs, Inuit Circumpolar Conference, National Aboriginal and Torres Strait Islander Legal Service Secretariat (NAILSS), Russian Association of Indigenous Peoples of the North (RAIPON), Saami Council.

Non-governmental organizations:

Friends World Committee for Consultation, Interfaith International, International Centre for Human Rights and Democratic Developments, International Human Rights Law Group, International League for the Rights and Liberation of Peoples, International Organisation of Freedom of Education (OIDEL), International Service for Human Rights, International Society for Threatened Peoples, Lutheran World Federation, Presbyterian Church USA, World Council of Churches.

15.              The following organisations of indigenous people accredited in accordance with Commission on Human Rights resolution 1995/32 were represented as observers:

African Indigenous and Minority Peoples Organisation, Ainu Association of Sapporo, Association for the Promotion of Batwa (APB), Assembly of First Nations, Association of Indigenous Peoples of the Sakha Republic, Association of Shor People, Association Tamaynut, Chickaloon Village Tribal Council, Chittagong Hill Tracts Peace Campaign Group, Comision Juridica para el Autodesarrollo de los Pueblos Originarios Andinos (CAPAJ), Consultative Committee of Finno-Ugric Peoples, Cordillera Peoples Alliance, Fédération des Organisations Amérindiennes de Guyane, Finno-Ugric  Consultation Committee, Fundación para la promocien del Ceonocimento Indigena, Foundation for Aboriginal and Islander Research Action, Indigenous Peoples and Nations Coalition, Lakota Nation, L’auravetlan Foundation, Louis Bull Cree Nation, Mejlis of Crimea Tartar People, Metis National Council,  Montanna Cree Nation, Movimiento Revolucionario Tupaq Katari de Liberacion (MRTKL), Na Koa Ikaika o Ka Lahui Hawaii, Navajo Nation, Nepal Federation of Nationalities, Nepal Indigenous Peoples Development  and Information Service Centre, Organizacion de la nacion Aymara, OSIGLI, Taller de Historia Oral Andina, TEA-Amaro Runa, Te Kawau Maro New Zealand, Tetuwan Oyate Sioux Nation Treaty Council.

Organization of work

16.                                      In his opening statement, the Chairperson-Rapporteur thanked the

participants for nominating him and announced that he would hold informal consultations with representatives of Governments and of indigenous  representatives on the organisation of work.

17.                                      After conducting broad consultations with national institutions and

representatives of indigenous people’ organisations, the government of Mexico has reviewed its position and supports the draft Declaration as adopted by the sub-commission.  The representative of Mexico presented a proposal to the working group in response to perceptions of slow movement on the draft declaration.  Mexico reiterates its commitment to finalising the draft declaration within the decade, as adopted by the sub-commission.  They stress that the draft was the product of intense negotiations between indigenous  representatives and experts with state participation and constitutes the minimum consensus to be accepted in order to fulfil the aspirations of indigenous peoples.  On the basis of these circumstances, and noting a tendency, on behalf of some States to weaken rather than strengthen the text, Mexico supports the idea that the working group examine the declaration with the view of ratifying the consensus reached by the sub-commission on the main concepts and afterwards, examining paragraphs that are less substantive.

18.       The Mexican delegation believes the working group should reflect the evolution of this theme internationally, particularly after the World Conference against Racism, Xenophobia and Related Intolerance (WCAR) and the growing , participation of indigenous peoples in their own countries and the growing awareness of their rights.  They further noted that the participation of indigenous peoples in the working group is a matter of principle and that the working group must look for mechanisms that strengthen the open participation of indigenous peoples in equality with states, since they are the ones directly affected by the results of this work.  Mexico supports the idea of designating an indigenous  representative to work closely with the Chair in the conduction of the work, and encourages the working group to meet more frequently so that the declaration can be adopted as soon as possible.

19.        In addition to its statement, the representative of Mexico proposed that

consideration be given to the establishment of a bureau.  He also proposed that such a bureau should be extended to include indigenous people’s representatives.  He stated that the proposal reflected the aspirations of indigenous peoples for more participation in informal and formal meetings.  The proposal is described in annex (iv) of this report.

20                The delegation of Guatemala said it could accept the original text as approved

by the Sub-Commission.  It considered that the reference to national legislation in the alternative text as proposed by some governments was unacceptable.  She said that the declaration was like the Universal Declaration on Human Rights and the Convention on the Rights of the Child, and any other international instruments and should inspire new international or national legislation or the revision of existing legislation when it did not guarantee rights.  The reference to national law not only closes off opportunities for revision but also could permit new legislation that further restricts the rights of indigenous peoples.  She observed that the alternative proposals were mainly motivated by concerns for guaranteeing the protection of third party rights, which she recognised as necessary.  In order to resolve this difficulty she proposed that consideration be given to a general article on the rights of third parties which she believed would facilitate consensus and allow for the adoption of various articles as approved by the Sub-Commission.  The text proposed is contained in annex V of the report.  She added that further precision of the rights that are recognised in the declaration could dealt with in a subsequent convention.  It is equally necessary to establish the legitimacy of third party rights.

21.       At its second meeting, the Chairperson-Rapporteur gave a summary of

the consultations held with States and indigenous  representatives and proposed a programme of work.  He proposed that three informal meetings be set aside for a general debate on (a) participation and procedure and (b) collective rights and (c) land, territories and natural resources.  The Chairperson-Rapporteur said he would convene a formal meeting to adopt appropriate decisions, should consensus be achieved.  He said, following the general debate, informal meetings will be held to consider article 13, and then articles 6 to 11.  The programme of work was adopted.

22.       The Chairperson-Rapporteur informed the working group at its third

meeting, that he would have to return back to his country before the end of the session.  He recognised that it was an exceptional situation that was beyond his control and requested the understanding of the working group.  He also committed himself to find a solution that would serve the best interests of the process.

23.       At its fourth meeting, the Chairperson-Rapporteur informed the

working group about the consultations that were conducted in order to guarantee the functioning of the working group. He said that there was consensus among all participants to appoint Mr. José Valencia (Ecuador) to serve as vice-chairperson of the seventh session of the working group and direct discussions during the absence of the Chairperson-Rapporteur.  He also emphasised that this was a solution taken only for this year due to exceptional circumstances and that it did not constitute a precedent.  In this context, Mr. José Valencia (Ecuador) was elected as Vice-Chairperson by consensus.

24.       At its fifth meeting, the Chairperson Rapporteur informed the working

group that governmental delegations had extended an invitation to all indigenous  representatives and non-governmental organisations to attend as observers the private meetings held by governmental delegations.  He welcomed this invitation as a demonstration of transparency and political will aimed at strengthening confidence and dialogue between governments and indigenous  representatives.  He invited indigenous  representatives to attend those private meetings, in order to receive direct information about the governments’ discussion aimed at narrowing down the differences they have on different articles of the draft declaration. A government representative said it was an offer in good faith, to promote dialogue.

25.       The indigenous caucus responded to the invitation of the governmental delegations, extended through the auspices of the Chairperson-Rapporteur of the working group, to attend as observers, the governmental consultations held during the time designated for the plenary session.   The caucus regretted that it could not accept the invitation as they did not wish to divert time, attention and resources away from the plenary sessions.  They expressed a strong desire to develop a way of working together with full participation in the plenary sessions to achieve the main goal of this process – the adoption of the draft declaration.  Some indigenous representatives welcomed the invitation and attended the consultations.

Informal debate

(a) Participation and procedures

26.       An informal debate took place on participation and procedures.   In

particular, there has been an open debate on the proposal presented by the representative of Mexico, concerning the establishment of a bureau and its extension to include indigenous  representatives.

27.       Several indigenous representatives expressed appreciation for the concerns presented by Mexico regarding the current process.  Several indigenous representatives also supported the Mexican proposal, saying that it would broaden the participation of indigenous peoples.  Some indigenous representatives welcomed the proposal and suggested that it should be considered more carefully.  An indigenous representative said that the declaration must be approached on the basis of a very high presumption of the integrity of the existing text and any proposed amendment to the text must satisfy the following criteria: 1) It must be reasonable; 2) It must be necessary; and 3) It must improve and strengthen the existing text.  The representative welcomed the government of Mexico’s proposal as a creative alternative to the present method of work, however, felt that constructive dialogue could be carried out through these terms of reference and in full plenary.

28.       Governmental representatives referred themselves to the Mexican

proposal as an interesting contribution that warranted further consideration, if it assisted the process.  Governmental representatives said that the current procedure seemed to be the most appropriate for the circumstances.  Some recalled that it was also possible to use “friends of the chair” as an alternative to the bureau, as previously used by the working group.  However, they mentioned that they were open to further suggestions that could help the process.

29.       The Chairperson-Rapporteur suggested that this proposal concerning

the establishment of a bureau should be included in the consultations he will hold in order to prepare the next session of the working group.

30        All indigenous  representatives expressed concern about the

meeting held by States in October 2001 and the non-paper that was elaborated.  Many felt that the non-paper paper process undermined transparency.  Many also said that the non-paper did not identify which countries were responsible for certain suggestions making it difficult to engage countries in consensus building.

31.       Governmental delegations addressed the concerns raised by indigenous  representatives.  They said that their non-paper process was conducted ‘in good faith’ and helped States to collect their thoughts in a focussed and co-ordinated fashion.  They also said that those non-papers were part of a process aimed at the elaboration of the papers for discussion that the Chairperson-Rapporteur would submit to the working group for its consideration.

32.       A number of indigenous representatives stressed the importance of full participation by all delegations in the working group by ensuring that documents for discussion presented by governments, were translated into all the official languages of the United Nations.  Of specific concern was the lack of translation of unofficial documents into Russian.  In this regard, there was a suggestion that Governments should provide Russian translation for such documents.  The Chairperson-Rapporteur said that according to United Nations procedures unofficial documents could only be translated into the three working languages.

33.                   The Chairperson-Rapporteur summarised the debate on procedural matters saying that there was a perception that the working group had made no substantial progress until now and that some participants believed that changes in the methods of work could reverse this situation.  However, he emphasised that he was convinced such apparent lack of progress was due to a lack of political will and not to the procedures used by the working group up until now. He recalled that there was no precedent of a bureau in any other standard setting working group of the Commission on Human Rights.  Nevertheless, since the practice for the organisation of work was consensus, a bureau could be established if the working group so decides by consensus.

(b) Collective rights

34.                   All Indigenous  representatives strongly underscored the significance of the collective dimension of their social, cultural, economic and political rights and in particular, the right to self-determination.  Many Indigenous  representatives noted that the right to self-determination is recognised under international law as a collective right, it is a right of peoples, and that indigenous title and other rights to lands, territories and resources are collective and communal or group rights.  Some indigenous  representatives pointed out the impacts of racism on the expression of indigenous identity.  Other indigenous  representatives drew attention to the right to development as a collective right and the need to exercise this right in order to determine economic, social, cultural and political development. 

35.       Indigenous  representatives also addressed the rights and responsibilities of individuals within the context of collective rights.  Several indigenous  representatives spoke about the African Charter of Human and Peoples’ Rights, which contains numerous references to collective rights.  Every indigenous peoples representative who spoke stated that the collective rights of indigenous peoples are essential to indigenous societal relations and decision-making.  Indigenous peoples also raised the important relationship between indigenous spirituality and other religious aspects of indigenous societies.  Several indigenous representatives stated that governments cannot give nor take away what has been given to them by the Great Spirit (known by many names in indigenous languages) – collective rights are sacred rights.  In addition, several representatives of indigenous peoples also emphasised the importance of the inter-generational exercise of collective rights for their children.

36.       Some governments stated that there are specific constitutional and/or legal

provisions and reference to existing international human rights instruments, recognising collective rights and individual rights of indigenous peoples.  Some other governments acknowledged that indigenous peoples enjoy both individual and collective rights.  Other governments pointed out that a balance should be struck to ensure that collective rights of indigenous peoples should not be exercised in such a way to impede the rights of other individuals.  Some governments also acknowledged the collective dimension of the rights of indigenous peoples and that in some instances, a collective or a group of persons could choose to exercise jointly, their individual rights.  Some governments further noted that there is an integral link of the recognition of these collective rights to the preservation of indigenous identity, culture, language, and traditional knowledge.  Finally, some governments indicated that they were ready to consider this issue on an article by article basis, in order to determine whether the rights in the declaration are individual or collective or both.  Several governmental representatives pointed out that the collective indigenous rights are already recognised in a legally binding international instrument, ILO Convention 169 on Indigenous and Tribal Peoples.  As a signatory to this convention, the governments concerned had recognised collective indigenous rights in various areas.

37.       The Chairperson-Rapporteur summarised the informal dialogue highlighting that he did not hear any intervention that could be interpreted as denying the existence of collective rights as such, however, there was no agreement as to which rights are collective rights, including self-determination.   He noted that there was a common understanding among the governmental delegations that took part in the debate and that they were ready to consider specific articles of the draft dealing with collective rights.  He therefore suggested that the working group should examine specific articles related to collective rights in the declaration in its next session.

(c) Lands and Natural Resources

38.       In their interventions on the lands, territories and natural resource provisions

of the Declaration, all indigenous  representatives emphasised the critical importance of their relationship with their lands, territories and resources for their survival, their spiritual, economic, social and cultural well-being, and the effective exercise of indigenous self-determination. Indigenous representatives emphasised the unique spiritual nature of this relationship, which is very different from the Western European concept of land ownership, and which extends to the surface and subsurface, inland waters and the sea, renewable and non-renewable resources, and the economies based on these resources.

39.       Some indigenous peoples representatives referred to “absolute title rights” as well as rights based upon treaties, agreements and other constructive arrangements, as a basis of international standards.  One indigenous representative pointed out that recognition by the United Nations of the principle of permanent sovereignty over natural resources should apply to indigenous peoples.

40.        Several indigenous representatives referred to their specific experiences including

colonialism, the enduring legacy of discriminatory land and resources law and the absence of participation of indigenous peoples in the settlement of their land and territory claims. Many Indigenous representatives also referred to numerous instances of forced resettlement processes and forced appropriation of their lands, territories and resources without their free, prior and informed consent.  The absence of recognition of their collective rights and the permanent sovereignty over their land, territory and natural resources was also reiterated by several delegations. Several indigenous representatives stressed that Indigenous peoples’ land, territory and resource rights are not limited by domestic law and policy, and that such an approach by States would conflict fundamentally with the purpose of international human rights standard-setting.  The recent decision of the Inter-American Court of Human Rights in the case of Mayagna (Sumo) Awas Tingni Community v. Nicaragua was referred to by some delegations in this regard, since it unequivocally affirmed that indigenous peoples have, as a matter of international law, collective rights to lands which they have traditionally owned, or otherwise occupied or used. Several indigenous representatives referred to related provisions in human rights instruments, including article 17 of the Universal Declaration on Human Rights (UDHR), article 5 of the Convention on the Elimination of all forms of Racial Discrimination (CERD), and article 27 of the International Covenant on Civil and Political Rights (ICCPR), as well as relevant jurisprudence of the human rights treaty bodies, in particular that of the CERD Committee and the Human Rights Committee.  Many Indigenous representatives urged adoption of the provisions in the draft declaration dealing with lands, territories and natural resource rights, particularly articles 25 to 30 in their present from.

41.       An indigenous representative spoke of the important United Nations workshop on Indigenous peoples and the private sector, which he had chaired in December 2001.  He noted the importance of this workshop in the context of this current working group. He said that we should reflect of the right to development and other relevant resolutions from the workshop, in contemplating these issues of the draft declaration. The report and resolutions of the private sector workshop were then submitted to this working group for consideration.

42.       A government representative said that her government recognised the special relationship between indigenous peoples and their lands and natural resources.  She believed that there is general agreement that the return of land where possible, is a way forward.  Governments however must balance return of land with managing natural resources on a national level.  She called for the development of a comprehensive article in the draft declaration regarding indigenous peoples and their land to assist the process of advancing the draft.  Another governmental representative stated that although they recognise the special relationship that indigenous peoples have with their lands, his government considers as problematic, articles 26 and 27 which in his opinion, provides for exclusive rights to all land and resources and constituted a denial of third party rights.  He said that retrospective application of indigenous rights should not be contemplated as compensation for colonisation, which happened a long time ago.

43.       A government representative noted that indigenous rights must be

balanced with other national needs and also that international instruments dealing with indigenous rights must be interpreted under many different domestic legal systems.  He also noted that there is no retro-active application of the recognition of rights and that rights are applied under the laws of the nation state.

44.       In summarising, the Chair-Rapporteur noted that there was broad recognition and respect for the particular relationship between indigenous peoples and their lands.  He noted that some States remained concerned about balancing indigenous rights to land and natural resources with national interests and third party interests.  There were also concerns about retrospective application of rights to land.  He emphasised that for some participants there was still a need to discuss specific aspects that required further clarification and which may need to be included, as the draft declaration does not cover all of the concerns raised.  He believes that land is central to the draft declaration and the work of this working group and urged participants towards further dialogue to take this matter forward.

Informal discussion of articles

45.       The working group discussed in informal meetings article 13 and then 6,7,8,9,10 and 11.  At the beginning of these discussions, the Chairperson-Rapporteur said that the working group would have an opportunity to consider substantive proposals.  He drew the attention of participants to previous reports of the working group, in particular those of the second and fifth sessions (E/CN.4/1997/102 and E/CN.4/2000/84) which contained an account of the general positions on those specific articles.  He therefore invited participants not to restate their positions but to present concrete proposals for discussion purposes only.  In particular, he asked governmental delegations to continue informal consultations with a view to bringing positions closer together.

46        The Chairperson-Rapporteur received documents for discussion on

articles 13, 6, 9,10 and 11.  The content of those papers will be explained in the following paragraphs. However, it is noted that in all those documents the term “peoples” appeared between brackets.  Annex 1 of this report contains a note explaining the different positions of governmental delegations with respect to the use of the term “peoples” in the proposals they have presented.  It is noted that all indigenous  representatives and many governmental delegations can accept the use of the term “indigenous peoples”.

47.       In general discussion on articles 13, 6, 7, 9, and 10, indigenous representatives reiterated their strong opposition to focussing discussion on specific articles on anything other than the original text of the declaration, as approved by the Sub-Commission and re-stated their commitment to the original text.  Some indigenous representatives stated that they are prepared to discuss and debate proposals and submissions in a constructive and positive manner in order to strengthen the Sub-Commission text.  The Indigenous representatives submitted a statement to the Chairperson-Rapporteur regarding the proposed documents provided by governments on articles 13, 6, 9 10.  The indigenous participants stated that government proposals do not reflect a consensus by the states, but, as clarified by some state delegates, they are a compilation of proposals and not a presentation of alternative text.

48.       All indigenous  representatives objected to the bracketing of “peoples” in the proposed text, referring to the earlier discussions on collective rights and self-determination and welcomed governments to join those who now support the term peoples in the Sub-Commission approved text.  Indigenous  representatives strongly objected to the inclusion of the proposed government references to other conventions in the proposed government text of the declaration (annex 1).  Indigenous  representatives stated that the use of such terms such as “reasonable” “where necessary” and use of terms such as “ensure rights” diminish state obligations and are unacceptable.

Article 13

49.       The Chairperson-Rapporteur submitted to the working group a document on article 13 of the draft declaration.  This document has been drafted by several governmental delegations participating in the working group, following a request by the Chairperson-Rapporteur.  The document contained alternative language for article 13 and comments on the proposal.  The alternative language for article 13, as presented by a number of governments, is included in annex 1.

50.       The document for discussion of article 13 stated that some States could

accept article 13 as originally drafted.  A number of States could dispense with a specific reference to balancing indigenous and third party interests in this article, as long as a new general paragraph on third party rights is included.  The document also suggests that “sacred places” be replaced with “sacred sites” in accordance with usage in recent documents.  The document also contains an explanatory note on the term “indigenous peoples” in the context of article 13.

51.       A government representative offered a detailed explanation of last years

discussion paper and noted that there is strong support for an article 13 that supports these rights to religion and culture.  Some States can accept this article as drafted while other States have raised issues in trying to balance indigenous peoples rights with third party rights and referred to examples in domestic laws.  It was noted that States have obligations to examine all international laws that they have signed up to and that their concerns need to be dealt with in an open and fair manner.  A proposal for a new paragraph on third party rights was proposed in order to address this issue, as it appears in many articles of the draft that could otherwise be adopted without changes.  Some government delegations reiterated their support for the rights of indigenous peoples and noted that the rights in article 13 are already guaranteed under other international instruments.  A government delegate said that while supporting the principles expressed in article 13, he wants the recognition of the rights of others to be taken into account.  He noted that other international instruments such as the ICCPR and CERD allows for limitation of rights that may impose on the rights of others. Some governments support additions such as “reasonable” and “subject to domestic laws” to be included in the text of article 13 and would like to see “make best efforts” used to replace “effective measures” which they believe are not realistic.  He further noted that the protection of sacred sites is a combined responsibility.  Some government representatives expressed a view that the formulation “subject to domestic law” is not acceptable because it undermines the overall goal of the process which is to develop a universal declaration. 

52.       All indigenous representatives re-affirmed their commitment to the original text, and welcomed the fact that many governments declared they were ready to accept article 13 as approved by the Sub-Commission.  A number of indigenous representatives stated they were prepared to engage in dialogue to move the discussion forward, as long as there was an improvement to the text.  Noting this, an indigenous representative, reflecting on the government proposal to add “and associated funerary objects” to article 13 after “human remains”, believed that the proposal would strengthen the text and supported the proposal with a slight reworking, such as “and associated and unassociated funerary objects”.  One indigenous organisation noted the proposed anonymously offered language “and associated funerary objects” and replacement of “sacred places” with “sacred sites” both bear consideration because the first recognises that funerary or burial items and implements are an important aspect of many indigenous societies and peoples.  The second is consistent with other usage concerning indigenous sacred sites.  They noted that these specific proposals were important examples of proposed changes, which meet their terms of reference by being both reasonable and actually strengthening the text.  Indigenous representatives expressed concern that the present proposal had 25 sets of brackets in two short paragraphs, rendering it incomprehensible as a basis for serious discussion.  Other indigenous  representatives added that the proposal was a year old and did not reflect evolution of thought on Article 13.  Numerous indigenous representatives underscored the fundamental importance of article 13 regarding access to sacred sites and use and control of cultural and ceremonial objects, as well as the right to repatriation of human remains.  

53.       Indigenous representatives objected to insertion of the text “subject to domestic laws”, stating that the inclusion of such language would narrow their right to maintain, protect and have access to their religious and sacred sites.  Indigenous representatives stated that any state prescription of domestic law would have to be consistent with international human rights law pertaining to indigenous peoples.  Other indigenous representatives stated that the proposal diluted basic minimum human rights standards, and that in many cases there are no domestic laws, which protect indigenous peoples, or that present laws are inadequate.  Indigenous representatives said that the reason they were at the working group was to set new international standards, and that international law should not be subordinate to domestic law, but rather to guide and influence domestic law.  Additionally, several indigenous representatives pointed out that there is already reference to international human rights standards in article 1 and other articles of the draft.  Many indigenous representatives voiced strong opposition to the proposal by some governments to insert a new paragraph concerning “third party rights”.  They noted that the subjects of the declaration are indigenous peoples, not third parties. Several indigenous representatives explained how third party interests have been a dominating factor in the loss of indigenous lands, including sacred places.  In many cases this has included discriminatory laws and practices of land distribution by states.  Indigenous peoples were concerned that the states did not fully articulate their concerns, during the formal sessions, about the text approved by the Sub-commission.  Indigenous peoples also noted that Article 45 of the Declaration references the UN Charter, which embraces the promotion and protection of all human rights and reminded all participants that the principal aim of Article 13 is the practice of indigenous spirituality. Many indigenous representatives stated that they did not support the introduction of the phrase “in accordance with human rights standards” and emphasised the fact that the articles must be read in context with other articles.  They pointed out that Article 1 of the Declaration refers to “international human rights law” and Article 2 provides that “Indigenous individuals and peoples are free and equal to all other individuals and peoples in dignity and rights.  They further added that all other qualifying and subjective language, such as “reasonable,” “where necessary,” and use of terms to “ensure” rights rather than affirm and guarantee them, were unacceptable.

54.       The Chairperson-Rapporteur noted progress in the dialogue on article 13 and that there was still no consensus on the text.  He therefore proposed to close discussions on this article and to come back to it at a later stage.

55.       The Chairperson-Rapporteur submitted to the working group a document on article 6 of the draft declaration.  This document has been drafted by some governmental delegations participating in the working group, following a request by the Chairperson-Rapporteur.  The document contained alternative language for article 6 and comments on the proposal.  The alternative language for article 6, as presented by a number of states, is included in annex 1.

Article 6

56.              The document for discussion of article 6 stated that some states accept the

language of article 6 as currently drafted.  States that have participated in the preparation of this discussion paper have done so with the intent of clarifying and improving the original text.  The explanatory note of the term “indigenous peoples”, to be set out in annex 1, applies to article 6.  Some states are uncertain as to the basis of a “collective” right to live in peace and freedom.  Some states are unclear about the actual content of a “right to peace” and “right of security”.  In regards to the latter, some states note that it is an individual, rather than a collective right at international law.  A number of states consider that the meaning of the expression “distinct peoples” is unclear.  Some states consider that the phrase “full guarantees against genocide” is unclear.  They would prefer language reflecting the definition of genocide in the Convention on the Prevention and Punishment of the Crime of Genocide, 1948.  The definition found in the convention includes forcible removal of children.  Some states are concerned that the original wording on removal of children is stated too broadly and could therefore preclude the adoption or transfer of custody of indigenous children in the best interests of the child.  Some states believe that the expression “mental integrity” in unclear. They pointed out that it is not a defined term at international law, nor is it one that is used in other international instruments. 

57.              Most states supported the inclusion of a new article concerning the rights of the child

generally and said such an article must consider a specific mention of particular principles contained in the Convention on the Rights of the Child, as well as its protocols in individual articles; and a general provision on the rights of the child; or, the inclusion of a general provision as well as specific mention in relevant articles.  A few states believe that higher standards could be set than those that currently exist at international law. A governmental representative expressed the view that the notion of “physical and mental integrity” is already included in existing international human rights law, in particular article 1 of the Convention against Torture.  Thus it should not be problematic to retain the reference to “physical and mental integrity”.

58.       It was noted by the Chairperson-Rapporteur that some governments believed it was unnecessary to make references to other international instruments whereas other governments thought it was highly desirable to do so.  One government noted that there was no collective right to “freedom, peace and security” but said that they were supportive that this be identified and included.  Another government said they supported the rights of indigenous peoples as individuals to enjoy “freedom, peace and security” but reiterated that this is not currently recognised as a collective right.  Some states questioned the meaning of “distinct peoples”, as used in article 6, in international law and noted that definitions of genocide should be based on the 1948 convention.  A government representative having listened to the indigenous caucus position urging that no references be made to other international instruments reviewed its position and concurred.

59.        Some governments questioned the development in the original text of “new”

human rights, in particular “collective rights”, such as a “collective right to freedom”, and questioned whether these “new rights” proposed, constituted a “passive duty” from governments.  Some governments asked for clarification of the term “violence” in the context of article 6.  One government believed that “violence” should only refer to “criminal violence”.  Some governments sought further clarification of terms such as  “distinct peoples” and noted that it was difficult to deal with terms not previously used in international law.  Some governments did not support the proposal from some states that “integrated with other inhabitants of the state” should be added to the original text.

60.        Some governments noted that the rights referred to in article 6 were in fact the

basic human rights of all people and also that there was considerable scope to improve and strengthen the article.  They suggested that alternative language may set higher standards and provides for better understanding of these rights.  

61.        A government representative noted that many delegations have shown

that the majority accepts article 6 in its present state and further noted that a significant majority of states are in favour of adopting the article as drafted by the Sub-Commission.

62.       All indigenous representatives strongly endorsed Article 6 as adopted by the Sub-Commission, although some indigenous representatives were prepared to discuss proposals that strengthen the text.  They stressed that the discussion paper presented by the States is an arbitrary and piecemeal compilation of already existing human rights instruments and that it does not improve the text of Article 6.  As the UN declaration is an aspirational document, many indigenous representatives believe it is unnecessary to refer to specific human rights instruments and that to do so, will have the effect of limiting the scope of the declaration to those States which have ratified specific conventions.  Indigenous representatives stated that there is, as yet, no demonstrable need to duplicate in the Declaration, the language of existing human rights instruments.  An indigenous representative responded to the states discussion paper by stating that collective rights are established in both domestic and international law, in particular with reference to the 1966 Covenants and specifically the right to self-determination,  ILO Conventions 107 and 169 and the African Charter on Human and Peoples Rights.  Several indigenous representatives stated that all States must recognise the collective rights of the indigenous peoples as the declaration is intended as an antidote to the past and continuing reality that indigenous peoples have been subjected to forced assimilation, integration and the denial of their rights to determine their own way of live and their destinies as nations/peoples.

63                Indigenous delegations believe that the substitution of the language "full

guarantees against genocide" with "shall not be subjected to any act of genocide", represents a fundamental diminution of the Sub-Commission text.  Furthermore it removes any requirement on the part of the States to provide protection against and redress for acts of genocide.  Indigenous representatives argued that the attempt by some States to narrow the scope of the genocide convention was extremely troubling.  Indigenous representatives stated that the requirement to prove "intent" had contributed to the ineffectiveness of the Genocide Convention and that it would be unconscionable for states to knowingly introduce similar elements into the Declaration.  One indigenous representative supported the concept of “economic genocide” in article 6.  An indigenous representative focused upon the question of “specific intent” being proposed by one government and vigorously opposed this restriction.  Indigenous representatives stressed that the need to prove “a specific intent” is notoriously difficult to fulfil and is not designed to deal with issues relating to indigenous child custody, foster-care and adoption.  Indigenous representatives emphasised that the states should be mindful of the fact that there is a distinction between child custody placement and the removal of Indigenous Peoples’ children with intent to assimilate.

64.       The Chairperson-Rapporteur concluded the debate on article 6 by noting that the clarification of positions from states and comments from indigenous representatives, makes is easier for participants to understand each others positions.  The Chairperson-Rapporteur in summarizing said that there appears to be four principal issues in discussions regarding Article 6, on which there is was still no consensus: the issue of "collective rights", as stated on paragraph 1 of Article 6; the appropriateness of the reference to and interpretation of "genocide" with proposals to refer to the 1948 Convention on Genocide for additional legal precision; and the legal nature of terms such as "physical and mental integrity", “violence” and “distinct peoples”.

65.       On paragraph 2 of Article 6, Chairman-Rapporteur did not find any discrepancies on the other issues concerning individual rights, besides the notion of “physical and mental integrity”.  He noted general agreement among the states on the development and addition of a new article on indigenous children with a reference to the UN Convention on the Rights of the Child and its two protocols, although there were opinions contrary to including references to international instruments in the declaration and to the content of the proposed addition.  The Chairperson - Rapporteur believes that the debate provided a good basis future discussions.

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