CONSEJO INTERNACIONAL DE TRATADOS INDIOS

EXPLANATORY NOTE ON THE PROPOSED RESOLUTION OF THE

Working Group on the United Nations Draft Declaration on the Rights of Indigenous Peoples (WGDD)

Over the past two years in the sessions of the WGDD, we have watched as governments have drawn up a series of proposed amendments to the Original Text of the United Nations Draft Declaration on the Rights of Indigenous Peoples (Text approved in 1994 by the Sub-Commission).

None of the proposals from the governments seeks to clarify or strengthen the original text. This is especially true of all the proposals coming from the more developed countries. In fact, they seek to weaken the scope currently maintained by the original text.

In the sessions of September and December 2004, we, the indigenous representatives, made an effort to demonstrate our political will in seeking to advance toward the adoption of the Declaration. We did that by proposing a list of preambulary paragraphs and certain articles that did not have changes, as well as others that had only minor changes to their language, which did not affect their scope. Some changes were also proposed in one of the preambulary paragraphs, Paragraph 15, to show acceptance of changes, with the proviso that Article 3 must be accepted as is.

To our great surprise, not even this was accepted by the governments, and in the end, there was no consensus whatsoever.

Those of us who decided to hold the hunger strike and spiritual fast were convinced that the governments would not even accept that effort of the indigenous representatives, because in fact, what they want is to change the Sub-Commission text. That is to say, the governments know that as long as the original text is alive, it is a text that can be used by indigenous peoples to defend themselves, since it has been adopted by a United Nations body, that is, the Sub-Commission for the Promotion of Human Rights and the Protection of Minorities. This was the case of Awas Tygni, a Misquito indigenous people of Nicaragua, who used the Declaration (among other elements) before the Inter-American Commission on Human Rights as an argument and legal defense in calling for recognition of their ownership of their own ancestral territories, when the Nicaraguan government had granted a concession to a foreign company for the exploitation of their forests. The Misquito people won a resolution in their favor and their territory has been recognized.

It is important to indicate that some indigenous organizations have proposed changes that, in our opinion, rather than clarify the original text, favor the opinion of the States on the need to make changes, but confuse the original language and in other cases accept limitations on the scope of rights. For example:

The Tebtebba Foundation and the Saami Council, in their CRP5 document, formulated proposals that we cannot accept, for example:

1. They propose the writing of a new paragraph 17, which states:

            “Taking into account the particular situation of peoples under colonial or other forms of alien domination or foreign occupation, it is recognized that peoples have the right to take any legitimate action, in accordance with the Charter of the United Nations, to realize their inalienable right of self-determination. The denial of the right of self-determination is a violation of human rights and underlines the importance of the effective realization of this right.

            In accordance with the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, this shall not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing all peoples belonging to the territory without distinction of any kind.”

In this regard, we stated that we cannot accept this proposal, since the first paragraph is language that is already set forth in preambulary paragraph 15 of the original text. The second paragraph is an aberration, since, while the first paragraph grants Indigenous Peoples the right to self-determination, the second paragraph intends to limit this right, by imposing language on them that refers to friendly relations among States. This paragraph now asks that the Indigenous Peoples be guarantors of the territorial integrity of the States! But did the States show any consideration for the territories of our peoples when they plundered us? What if the Indigenous Peoples want to reconstitute our territories? We wouldn’t be able to, because this Declaration, according to the proposal from the Tebtebba Foundation and the Saami Council, would say “this shall not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign … States …”! What a nice little catch!

2. The proposal of the Tebtebba Foundation and the Saami Council regarding Articles 7, 8, and 9, starts with the language: “Indigenous peoples and individuals…”

We said that this is exactly what the governments have been encouraging: not to identify the word “peoples” with “Indigenous Peoples,” which creates confusion, since the party entitled to the rights is not clearly identified.

3. Article 26 (referring to Lands, Territories, etc.), in the original text states: “Indigenous peoples have the right to own, develop, control and use the lands and territories, including the total environment of the lands, air, waters, coastal seas, sea-ice, flora and fauna and other resources which they have traditionally owned or otherwise occupied or used…”

On the other hand, the Tebtebba Foundation and the Saami Council limit this right in their proposed amendment to Article 26, which states: “Indigenous peoples have the right to own, develop, control and use their traditional lands and territories that are occupied by them or that are indispensable for their material and cultural subsistence, as well as lands they have acquired in other ways…”

We cannot agree to this language, since it eliminates what is covered by the concept of “territory” and limits the scope already contained in ILO Convention 169 in reference to Territory. It also only indicates the lands and territories “that are occupied by them.” This means that Indigenous Peoples who have been evicted, plundered, and displaced from their lands and territories, will no longer have a right to them. But what’s worse is when they say “the lands they have acquired in other ways,” that is to say, lands, but no longer territory. All that has been the proposal of the governments, while those of us who have held firm have not allowed government texts to attempt to limit our rights as the Tebtebba Foundation and the Saami Council now propose.

During the most recent session of the Working Group, the indigenous brothers and sisters from Canada, from the Assembly of First Nations, as well as the indigenous organizations of Latin America, asked the Tebtebba Foundation and the Saami Council to withdraw their proposal, since it attacked the Indigenous Peoples and certain agreements that the Indigenous Peoples in Canada had reached with their governments. Nonetheless, they refused to do so and still maintain those proposals.

Based on the above we state that those who are working to extend the Working Group on the Declaration, without any strategy to counteract the governments’ attempts to limit or weaken the original text, merely fall, consciously or unconsciously into the governments’ trap.

For that reason, more than 100 organizations have proposed that the Working Group take a recess, with the mandate that the procedure followed to date be reviewed and that the form of reaching a consensus be changed, but, above all, that a clear and transparent procedure be established so that the voice of the thousands of indigenous peoples and organizations who cannot be in Geneva will be heard, in order to adopt a strong Declaration in favor of the Indigenous Peoples, which for us, up until the present time, continues to be the original text of the Declaration adopted by the Sub-Commission. And that text is precisely what the governments don’t want, because it truly grants the rights that we are demanding. Now, if the Working Group does not meet again, then the original text will have remained intact and can continue to be used by the Indigenous Peoples. In that case, we will turn it into Customary Law, which is another form of making laws within the United Nations system.

We also stated that if, in the end, the most powerful governments are going to impose a Declaration, without the consent of, or against the Indigenous Peoples, let them do so. We will then call for the adoption of the Indigenous Declaration on the Rights of Indigenous Peoples.

Saúl Vicente Vásquez - Indigenous Zapoteca, Juchitán, Oaxaca, Mexico

Estebancio Castro - Indigenous Kuna. Kuna Yala, Panama.

Geneva, Switzerland, March 26, 2005