CONSEJO INTERNACIONAL DE TRATADOS INDIOS

Contact details:

Alberto Saldamando, General Counsel,

International Indian Treaty Council

Tel: [USA] +(415) 641-4482

Email: alberto@treatycouncil.org

Title: The follow-up of Human Rights Council Decisions: The Council’s Declaration on the rights of Indigenous Peoples

UNITED NATIONS HUMAN RIGHTS COUNCIL
Fourth session
March 12 – 30, 2007

Agenda Item: Follow-up of the Human Rights Council Decisions

Written Intervention submitted by the International Indian Treaty Council, Indigenous World Association, International Organization of Indigenous Resource Development, the Union of British Columbia Indian Chiefs and the Assembly of First Nations[1]

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On June 29, 2006, the Human Rights Council voted 30-2 to adopt the United Nations Declaration on the Rights of Indigenous Peoples, a landmark step in the evolution of international human rights standards. We, the above-named Indigenous peoples and organizations, submit this intervention to follow-up on this historic decision and to make recommendations to the Council.

We reiterate our gratitude to the Human Rights Council, its Chair Ambassador Luis Alfonso de Alba and the many supportive States from all regions of the world for adopting the U.N. Declaration last June.  We also greatly appreciate the Statement to the Council by the Ambassador of Algeria on June 27, 2006, when he declared on behalf of the African Group of States that it “expresses its concurrence with this Declaration and therefore gives it its full support”.

However, we are concerned by the actions of some States, including at least one member of the Council, to politicize Indigenous peoples’ human rights, stall adoption of the U.N. Declaration by the General Assembly and thereby undermine the essential work and achievements of the Human Rights Council.

We therefore commend Human Rights Council members for rejecting Canada’s proposal last June to indefinitely delay adoption of the Declaration and re-open the text – after more than 20 years of discussion – for re-negotiation.  While Canada declared in its Statement to the Council on June 27, 2006 that any issues could be resolved by all parties “in a few more months”, this statement was intentionally misleading.  Just one day before, the Prime Minister of Canada had indicated in writing to Indigenous peoples in Canada the need for a “two-year negotiation mandate”.

We are particularly troubled by the attempts by Canada, a Human Rights Council member, to politicize Indigenous peoples’ human rights.  Canada has failed to respect the rule of law in Canada and internationally, repeatedly refusing to fulfill its constitutional and Treaty obligations to consult Indigenous peoples in Canada and accommodate their concerns. While calling for “open and transparent” consultations, Canada continues to engage in strategies of misinformation in lobbying other States against the Declaration.

In late September 2006, the government produced and then back-dated a paper entitled “Canada’s Position: United Nations Draft Declaration on the Rights of Indigenous Peoples - June 29, 2006”.  As the Assembly of First Nations in Canada has detailed in its 62-page Commentary, “almost every paragraph of this government paper is replete with errors, omissions, contradictions, extreme and unjust interpretations or other misrepresentations”.  Canada has chosen to ignore the serious inaccuracies in its paper and has continued to irresponsibly disseminate it in order to stir up unfounded fears and opposition among States.

Canada has joined with New Zealand, Australia and the United States – three of the most actively obstructionist States in the standard-setting process – to lobby African States to reverse their support for the U.N. Declaration.  Botswana was one such state that led the offensive against the Declaration. Last December, the High Court of Botswana ruled that the government’s treatment of the San/Basawra people was unlawful and unconstitutional, in denying them their land and subsistence rights in the Central Kalahari Game Reserve.

Throughout the world, Indigenous peoples are continuously facing life-and-death issues and suffering human rights violations of the greatest urgency.  While the adoption of the Declaration will not resolve all of these injustices, it provides a positive step forward. It also provides a framework for addressing these critical situations and ensuring the rights and survival of Indigenous Peoples worldwide. Therefore, it is deplorable for Canada, New Zealand, Australia and the United States to encourage other States to withhold support for this aspirational human rights instrument.

As a result of such strategies, the General Assembly adopted Resolution 61/178 on December 20, 2006 that calls for more time for further “consultations”. As emphasized by the Global Indigenous Peoples Caucus in its December 30 letter to the President of the General Assembly, these “consultations” should not be converted into a working group or other divisive process that opens up the Declaration to any changes.  Such a regressive move would likely kill the Declaration.  It would also undermine the long-term effectiveness of this Council, upon which so many victims of human rights violations are depending.   

Indigenous peoples are underlining to the GA President a positive human rights-based approach for addressing the next steps towards the Declaration’s adoption by the General Assembly:

A key purpose of “consultations” is to bridge understanding, especially for many States that chose not to participate in the standard-setting process that took place for over 20 years. “Consultations” are to obtain State and Indigenous opinions, which must be fully consistent with the purposes and principles of the Charter of the United Nations.

While Canada and like-minded States claim to seek the “broadest possible agreement”, they refuse to confirm that any agreement must necessarily continue to include Indigenous peoples. To act otherwise would reverse the current practice in the standard-setting process relating to Indigenous peoples. It might also result in allowing States, many of which have committed human rights violations against Indigenous peoples, to unilaterally alter the Declaration for their own political objectives and gain. 

Consistent with GA Resolution 61/178, Indigenous peoples are proceeding with further “consultations” both internationally and domestically. Indigenous peoples are presently making constructive efforts to engage States from different regions of the world, so as to encourage further discussion on the Declaration and clarify its contents.

We especially look forward to working with African States. We can identify with Africa’s historical experience of persistent and widespread discrimination and colonization.  We strongly support the ongoing efforts to meet the significant challenges facing African peoples and States. We encourage African States to engage with us to clarify the essential purposes, distinct qualities and balanced nature of the Declaration.

As explicitly required in the Declaration, the “human rights of all shall be respected”.  Every provision in the Declaration must be interpreted in accordance with such fundamental principles as “justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith”.

We are determined to ensure the successful adoption of the Declaration by the General Assembly before the end of its current session – thus achieving a major objective of the International Decade of the World’s Indigenous People.

Presently, it is important to focus on the “consultations” on the U.N. Declaration on the Rights of Indigenous Peoples, as adopted by the Human Rights Council, and on advancing its adoption by the General Assembly.   We respectfully urge the Council to work with us and to highlight to the General Assembly and member States the following commitments, precepts and approaches:

i)                      Devising such “consultations” so as to be fully consistent with the promotion and protection of Indigenous peoples’ human rights, and be based on the principles of cooperation and genuine dialogue that include full and effective participation of Indigenous representatives;

ii)                     ensuring objectivity and non-selectivity in the consideration of Indigenous peoples’ human rights, and the elimination of double standards and politicization;

iii)                   requiring any measure of agreement or consensus be fully inclusive of Indigenous peoples, as is the practice in the standard-setting process;

iv)                   fostering, with a spirit of flexibility, dialogue on the implementation of Indigenous peoples’ rights in the Declaration, rather than creating new divisions in re-negotiating the text; and

v)                    strengthening the capacity of member States to comply with their human rights obligations, so as to ensure the dignity, survival and well-being of the world’s Indigenous peoples.

vi)                   Ensure that any informal consultations take into consideration and do not depart from well established principles and norms of international human rights.

In the 2005 World Summit Outcome, Heads of State and Government reaffirmed their commitment to the “advancement of the human rights of the world’s indigenous peoples … through consultation and collaboration with them, and to present for adoption a final draft United Nations declaration on the rights of indigenous peoples”.  All States are committed under the U.N. Charter to promote and respect the human rights of all. Human rights are one of the three “pillars” of the United Nations.  If Indigenous peoples’ human rights are undermined, then the other “pillars” of “peace and security” and “development” will not be achievable.

We look forward to working closely with the Council to develop criteria and methodology for effective implementation of the Declaration as a framework for the advancement of Indigenous Peoples' human rights within States and at a global level.

We thank you for your significant contribution to this effort.  For all our relations.