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  CONSEJO INTERNACIONAL DE TRATADOS INDIOS

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United Nations Commission on Human Rights

8th Session, Ad Hoc Intersessional Working Group on the

Draft Declaration on the Rights of Indigenous Peoples

December 2 - 13, 2002

Oral Intervention by the International Indian Treaty Council, Article 8

 

 

Thank you, Mr. Chairman,

 

Mr. Chairman, I take the floor again, by necessity as some have used our initial comments supporting the current text, as justification for allowing the Canadian proposal as necessary only for consensus, although they themselves support the current text. In addition, I fear that the Potowatomi representative may also have misunderstood my comments.

 

I know that there is no right of reply, so my delegation would merely associate itself with the intervention of Indigenous World, and Mr. Barnes. I would only ask that the Potowatomi representative recall that there are Indigenous Peoples unrecognised by the United States, or in other countries who need not wait for funding considerations by the States before they can legitimately identify themselves as Indigenous or claim their rights as Indigenous Peoples.

 

For example, and in regard to the stated government of France position, I had lunch with Mr. Tony Blackfeather of the Teton Sioux, whose Peoples have chosen not to have the State recognize them as Indigenous. Is Mr. Blackfeather any less Indigenous, or are the Teton Sioux any less an Indigenous Nation without that “legal” recognition? More pointedly, Mr. President, should their rights as Indigenous Peoples have to await funding considerations by the United States before they can be regarded as Indigenous? My delegation thinks not.

 

We would also ask that the Potowatomi representative recall the policy of termination by the United States government of many Indigenous Nations. We would ask that he recall that although many tribes terminated under that policy have been reinstated to government recognition, there are tribes whose petitions for reinstatement have not been resolved after many years. Should their rights as Indigenous Peoples await the US government decision, or its determination of funding?

 

Relevant to our discussion yesterday, Mr. Chairman, on Cultural Genocide, one subtle means of that genocide is precisely the power of the State to decide who is an Indigenous collectivity and who is not.

 

I would also ask that Indigenous Delegations that have voiced their acceptance of Canada’s inclusion of the world “individual” after Indigenous Peoples not cite our rejection of that amendment as a reason for its acceptance. As I understood the Chair, these private sessions were to determine the basis for such amendments, and await the private sessions on Thursday. We did reject the proposal as either unnecessary or as superfluous, but the intent was to see why Canada was in fact proposing it. We continue to await their justification.

 

Our delegation would also caution other Indigenous representatives to understand the import of their acquiescence. By their inserting the word “individual” the Canadian government is suggesting that the right of the individual is equal to the right of the Group. By their acquiescence our Indigenous colleagues invite such inroads into other sections and other rights that are primordially and fundamentally the rights of Peoples. Such, we believe, is the intent of the Canadian government. The rights of the individual are not equal to the rights of the group to determine who may belong to the group. As we shall see with regard to other sections, this Canadian logic, with the happy participation of the United States and France, will be applied again.

 

We are pleased, Mr. Chairman, that Canada has cited the International covenant on Civil and Political Rights as a basis for this section. As the Chair as requested, we believe this Covenant is a universal standard. The principle that the rights of the group are superior to the rights of the individual precisely as a matter of identity, as well as the right to land and natural resources, has been established by the jurisprudence of the ICCPR treaty Monitoring Body, the Human Rights Committee.

 

With regard to identity, in Kitok v. Sweden, CCPR/C/33/D/197/1985, 10 August 1998, the Human Rights Committee, in deciding whether national legislation concerning reindeer herding and the rights of the Sammi Peoples applied to Mr. Kitok. They found:

 

“9.8 In resolving this problem in which there is an apparent conflict between the legislation, which seems to protect the rights of the minority as a whole (ie. The group) and its application to a single member of that minority, the Committee has been guided by the ratio decided in the Lovelace case (No. 24/1997, Lovelace v. Canada), namely that a restriction upon the right of an individual member of a minority must be shown to have a reasonable and objective justification and be necessary for the continued viability and welfare of the minority as a whole.”

 

Mr. Chairman, Canada, as well as Sweden are bound by the ICCPR and the Human Rights Committee jurisprudence. Any restriction on the collective rights of the group to determine who is a member can only be justified only if it is reasonable and objective and we would emphasize, Mr. President, only if it is necessary for the continued viability and welfare of the group itself.

 

The International Indian Treaty Council therefore continues to support the current text as necessary for the continued viability of the collective right of indigenous Peoples to decide who is a member of their group, not conditioned on the approval of States, not conditioned on funding considerations. We continue to believe that the Canadian proposal, insofar as it would equate the right of the individual to the collective rights of Indigenous Peoples is not in the interests of Indigenous Peoples. We also believe that the real consensus is for the present text and not the Canadian proposal.

 

Thank you Mr. Chairman.

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